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Les di«^grammes sulvants illustrent la mdthode. 32X 1 2 3 1 2 3 4 S 6 C: '^' ^^1^ & &: ^ jj yf^ r9 ~<-j r-t Kj /•% f^ >q) oo d ■r ^i A.ini REPORTS OF CASES, ARGUED AND DETERMINED ' ■ IN THE COURT OF VICE-ADMIRALTY, AT HALIFAX, IN NOVA'SCOTIA, FROaj THE COMMENCEMENT OF THE WAR, IN 1803, TO THE END OF THE YEAR 1813, IN THE TIME OP ALEXANDER CROKE, LL.D. JUDGE OF THAT COURT. % JAMES STEWART, Esq. A MEMBER OF HIS MAJESTY's COUNCIL, AND SOLICITOR-GENERAL FOR THE PROVINCE OP NOVA-SCOTJA. V\ yli ^ff'^ufkata pro Veritate accipitur. Dig. lONDON.' PRINTED FOR J. BUTTERWORTH AND SON, FLEET-STREET. TO THE RIGHT HONOURABLE ROBERT, ^ORD VISCOUNT MELVILLE, FIRST LOBD COMMISSIONER OP THE ADMIRALTY, &C. &C. &C. THIS BOOK IS, II^ITH THE UTMOST RESPECT, MOST HUMBLY lif SCRIBED, BY The reporter. PBEFACEw THE following reports of Admiralty cases are published from no other motive, than that of adding to the store of decisions upon nati- onal law ; which are, as yet, by no means too numerous, and which in these time, of lasting warfare, can never come amiss to the profes- sion. It may appear presumptuous in the advocate of a provincial Bar to engage in an uiidertaking of this sort, when similar publi- cations are daily occupying t1ie abler talents of the mother country, among the important re- cords of high and superior tribunals. But as the Vice-Admiralty courts of the colonies, since the forty-first year of his present Ma- jesty's reign, have been placed upon a truly in- a VI dependent and respectable fobtinj^, and are now filled by men of professional distinction from the parent state; their judgments are be- come interesting and valuable, not only to the practitioners of their several courts, but, the reporter humbly conceives, to the profession at large within the British dominions. The court, in which tliese decisions \^ere given, was established upon its preseiit basis in the year 1801. The irregularities which had prevailed in the Vice- Admiralty courts having given occasion for complaint, both at home and abroad, at length drew the atten- tion of His Majesty's Ministers, and of the Legislature. It was thought proper, by les- sening their number, by extending their juris- diction, and, by increasing the salaries of the judges, to give them greater consequence and <^ignity, and to induce gentlemen acquainted with the law, and the practice of the courts in England, and, particularly, some of the advo- cates of the civil law, to accept of these judi- cial offices. With this view. His Majesty, by a letter of Lord GrenvHie, dated the 22d day of January, 1801, directed the Lords Cbmmissioners of the AdmiraUy, to revoke the prize commissions which had been granted to the Vice-Admiralty Courts in the m^t In-^ dies, and in the colonies upon the America^ continent^ fexcept Jamaica and Marfinico. An act of parliament was then passed, in July 1801, (41 Geo. III. cap. 96.) by which " each and every of the Vice-Admiralty Courts esta- Wished in any two of the islands in the West Indies, and at Halifax in America, were impow- cred to issue their process to any other of Hi* M-ajesty's colonies or territories in the West Indies or America, including therein the Ba» Kama's And Bermuda islands, as if such court was established in the island, colony, or terri- tory. Within which its functions were to be exercised.- His Majesty was authorised to fix salaries for the Judges, not exceeding the sum of Two Thousand Pounds per annum for each Judge, and it was then enacted, « that the profits and emoluments of the said Judges should in no case exceed Two Thousand Pounds each in any one year, over and above their salary." Martinique having been given op at the peac€ in 1801, a Vice-Admiralty _ • •• VIU Court was erected at Barhaboes in lieu of it. By another uct (43 Geo. III. chap. l6o.) in 18()J, provLsion was made for the Judges of Vice-Admiralty Courts to be established in ^he Bahama and Bermuda islands, and at Malta, , III August 1801. Alexander Croke, LL. D. an advocate of the civil law, and a barrister at law, had the honour of being offered, without solicitation, the first appointment upon this new cstablishmeiit, with the choice of his sta- tion; in which he preferred the severe, yet heal- thy air of iV^ora Scotia, to the luxuriant but hazardous climate of the /Fa^ Indies, and has presided in it ever since that period. . Dining this time, and for many previous years, the Author of these Reports lias been unremittingly engaged in the practice of that court. Tills practice has afforded him the op- portunity of occaaionaily taking notes of some pf the principal cases. The arguments are not detailed to the extent in which they took place^ but th? judgments are reported at length, and with strict accuracy as to the chief grounds and substance of them. For this sa- i IX ■if tisfaction he is mucli indebted to the kind as- sistance of tlie learned judge, to wliose minutes he has had welcome access. Many of the fol- lowini>- cases have been already published iit Halifax, at the particular rccjuest of the gen- tlemen of tlie profession, and otiier persons in- terested ;— that of the Zodiac by the autho- rity of the governor. The Author of this work is known merely within his own professional sphere, and that a very humble one, but the Judge whose decrees he has ventured to record, is not so obscurely situated. He has not only distinguished him- self as an advocate in Doctor's Commons, but his vindication of our belligerent rights, in his excellent answer to Schtcgd, and his intro- duction to the case of Horner and Lydiard, have brought his talents into that notice which cannot but add a value to his judicial deci- sions.* Whether or not these cases may be received • Dr. Croke is the descendant and tl»e representative of Ihe family of Sir George Croke, the Koporter, who so ably defended the cause of rational liberty in the cases of the ship money, and Ilambden's imprisonment. The history as authorities in other courts, is not for thVas i„-. iorced to subduct and conceal himself under the name of ^roke, till such time as King J^enrj, the SeVenth most happdy reconciling those different titles, this our ancestor iGnmston, who was the progenitor of the present peer of thit name, married one of Sir George Croke^ daughters) in his posthminum, assuming his ancient name, wrote himself Croke, alias Blount, that of Blount being altogether omitted hj our Judge's father upon the marriage of his son and heir, S.r John Croke, with the daughter of Sir Michael Shunt, of Maph Durham, in the coimty of Oj:ford:" Ptef, Cro, Csn gmJL 'V~»f xi Bhglandy has laised his own reputation, as well as that of his country, for national justice; to an eminence of which Englishmen may proudly boast. This boon has been acquired by a system of independent, just, and humane principles, which have been followed, it is hoped, with strict attention by the iniferibr tribunals— among them the Vice-Admiralty Court of Nova Scotia, the Reporter may be allowed, without vanity, to assert, is not the least distinguished for an adherence to that ad- mirable system, a system which ** all those who entertain the wish of Esto perpetua ! with res- pect ^to the safety, the independence, and the . glory of the British empire" will ever feel the obligation of adopting. JAMES Stewart. Halifax, Nova Scotia, August 1, 1813. Ji DATES. iL< . i Peclaration of Hostilities ©gainst France, 16th May, 1803, ' s Declaration of War by the United States, IStl* June, 1812. Oriler to detain Amencan Vessels, lOtb August, t '.■'■■*•' *- f ■ . • . - Order for General Repriz^ls by the Prince Regent, -l^th October, Notification of the Blockade of the C/iesajpealix an4 Delaware, 26th December, a THE COURT OF VICE-ADMIRALTY AT HALIFAX, IN NOVA -SCOTIA. During the time of these Decisions. The Worshipful Alexander Croke, LL.D. Judge. Richard John Uniacke, Esq. Advocate-General. James Stewart, Esq. Solicitor-General. Richard Parker, Esq. Registrar. Charleb Morris, Esq. Deputy. James Putnam, Esq. Marshal. Charles Hill, Esq. Deputy. ADVOCATES AND PROCTORS. Foster Hutchinson, Esq. now one of the Judges pf the Supreme Court. Brenton Haliburton, Esq. now a Judge of the same Court. John Harvey Tucker, Joseph Aplin, Lewis M. Wilkins, S. B. RoBIE, Crofton Uniacke, Samuel G. W. Archibald, \ ^^"J"' David Shaw Clarke, vCharles Faibibanks, William Hill, Robert Skipsey Martindale, - uires. I TABLE or CASES REPORTED IN TUIS VOLUME. A Page BiOAiL^ Johnson 355 Active - 169 Active, Alberg 579 Amanda, Bangs 442 American, Worthington 286 Arab - . 528 Arab, 2d. case 546 Aramintha - 47 Beaver, Jones 173 Belle, Steinhauer 537 Bermuda r 231 Betsey, Savage 39 Carlotta, Carvalhq 539 Clyde - - lOO Cossack r - 513 Cuba, ^haims 525 .Cu^LEV, Magnet, and otliers Dart, Ramage 301 Economy, Holmes 446 Eleanor, Hall 177 Elizabeth, Benners 80 Eunice, Riggs 528 J^uphemia, £>eMarias5d3 Expedition, Brooks 488 Express, Hasfeett 292 95 112 Plough 561 559 171 Fame r Schooner Fame Fanny and the Boy Flight, Kelly Fly, Frazer Frederic Augustus 486 Friends Adventure 07 Friends Adventure, Curry - 200 La Furieuse - 177 George, Robertson 389 GusTAVA, Swenherg 541 Happy Couple, Story ^5 Henry, Gardner - 48^ Herkimer, Church - 17, 128 Hibberts, Haynes - 40 Schooner Hi&am, Orme 583 Jerusalem, Cacori - 570 Johanna, Newcombe 521 Little Joe, Fairwec^ther, 1st case - - 382 Little Joe, Fairweather, ^ ^ lase - - - 394 Mai: >pi.m, Jordan - 379 TAT5LE or CASES REPORTED. .I'n£;c Marquis ni: Somkuuelk.s Mahqitis T)r; Somkiuiklks, 2(1 v.xsr - . 4}{2 1-A Mkucf.i), Juchnurut 200, 21,0 jVancv, Ifurd - - 2J{ Nancv, liuxjord - 4t> Ni;\v Orleans Tackot, A', v. Harris - 2G() IVl'KSTKA Senora DKJ, CaKMHN - - - }{;j Orion, y«A/w - 4J)7 J*atriot, Reardon i\^)0 Patiy - - 299 Pilgrim, /i«/fer - 5.'j;j TUOVIDENCE, Jiac jV?4/^ 1«0 La Kf.ine des A noes J) It E Fi' ij LI c A N , Beaupin 57 1 Kewaud, 77/// - 470 lioscio, Car/ac - 5^0 I iVVLLY AnM', Diiif a()7 Si:VKRiy, liradfnrd 2»1 ^^N 'ok's I'khtions 4-27 NTANW()r)i),c f^tiovh's) case 123 Stockholm, Chaplain 37ij Success, 7.^r/y - - 77 Tamaahmaii, Skidd If 2o4 Thomas Wilson, Jiroum iHREE Brothers, 7''^7r/^ r r, ^^ Les Trois Fkeres - 1 Mitchell's case - 551 Union, biii»- 98 United States, Moor 1 16 Venus, OakJ'ord - J2 Venus, Allen - - 9Q Walked, Clurk - - 9;^ War KEN, Sir John Bor^ Inse, petition of - 327 ZouiAc, IJa^ue - 3^3 ^1 REPORTS ly .•J07 d 2H4 \s 427 'h'.s) rasij 12a }laiu 3 7 if - 77 r% 254 Jiiowu 2(){> s, /V/r/« s - 1 - 551 - 98 - 12 - 96 - 93 u Bor- - 327 333 »RTS I ^¥ REPORTS Of CASES ARGUED AND DETERMISED IN TITS COURT OF TICE-ADMIRALTY, At Halifax, in Nova Scotia, &C.&C.&C. Les Trois Freres. yf^'PO'lo/ tie Captor,, the Kin^U Advocate c«»W„A...Tl.at Ihis being a Frcneh ^hip, and the whole of her cargo PrencU property, a con.lenmation ofhoth niH8t ensue, although the claim of Messrs /)*»»« might raise a plansible question, respecting the neutral do.n.c.1 of those gentlen,en. This vessel true, ot the existmg war between Ftuuee and Eng. laud, and, whde on her vojage, received the first in- telligence of this event. At the instigation of the Clamiants «,bo had property to a Considerable amount on boar,l of her, the master consented ,"r^ turn to JtaUmore, where the IMessrs. Venm, had been restdnig several years during the late war! Wh,le m the act of returning to BaUi,nore. she „a. captured, aud brought into Hahjk, for adjudica- B Oct. n, 1803. A Frenchmtm settled in Ame» rica, returning to France, upon information of war alterji his conrse. and re« turns to AnU' - rica. Hin /imt* rican doinicii net diveited. '"^ 2 Tim I,rii Tiioin l''iii'iitii. Ihi. rj, lllu.l. CASTS f)i:Ti:Ri\iiNr:i) in the iioii, l>y a priv.ilr sliif) oC wjjr, (lir (lOtrrvor CurUon, owiic I by I'Wsulh, Smillt, iiiid (Jo, (.llliis poil, who j«n> w«'j| |)i<»|.ri(y ofdir ciiriiiy. Tlir cliiiiiiaittM may prolmhly assnl Jliaf. alllioiii,di Hiry had <|iiiM«Ml Hal- Union' wilh a virw of n 'hi ruin:; to Froncc, not Lnovv- iiif^of (hr war, thoy wore r(|iia!Iy dclciiniiH'd when Ihry had heard of llu' rnicwal »)(" hostililirs, to re- tiini ((► lialiiinorc, and lake up thrir aho(h' a<;ain in tht' iieidral coMiilry, \\y\\ this intt'iitioii ii(»t having \uv\\ carried into (•<»mpU'(«' rflrcl, and the parties Iiavini;- re-assnnu d their nenlral IWuc/t d in jimnint. The hare intent of returninij; to liallimortt is not in ilscJlMillieient, lo restore them to their nen- tral riinhts. They had departed from Amnint, with all tht ir propirly, an, h(> p)in}i,inn(li farther, on the scMire of national indnli;-ence, than any decided case of domicil uonid warrant, to admit th€^ claim of iMessrs. Dennis under these circumstances, and to restore the cargo to them as resident merchants of liallimore. On the part of the Clnimonfs, iftc Solieifor (h'ne- ral. — jNo «piestion can arise in this case, hut what relates to the domicil of .Messrs. Dennis. 'J'jie ship is avowedly Frenrh, and the cargo is admitted lo ho the property of persons, who are natives of rramr, but who, for several years during the late war M'ere domiciled in Baltimore, there carrying on trade as resident merchants of America. llad the capture taken place while the ship was jMOceeding to France, the claimants must have bceu cousidured as saiiiug- uudcr their nutiv« or CitvJlon, s poll, who iiiiio as \\\v. iiiaiits iiiiiy hKKmI Hal- not kiiow- iiird >vhen ilirs, to re- lic a,<;ain in not hiiving llic parties ds found Baltimore jpture by urse, and I claimed I the ves- ited ; and he Court his na- on. le claim; Dunkirk. :es of his y the act , that he COURT OF yiCE.ADMIRALTT. had then been resident five years at Baltimore. The correspondence in his letter-book, and other docu- ments, shew him to have continued there from that time. It being therefore fully proved that he iiad been resident at Baltimore for ten years, that he has been admitted a citizen of the Uniled liilaies, possessed a house, and hsd been carry i.g on com- merce there for that period, it must lie admitted that, till this transaction, he was to all intents and purposes an American merchant, and iiitiilecl to all the privileges that attach to that character. But it appears that he had formed an intention, for some time, of removing from the United Slates. Jn some of the earlier letters indeed, his mind seems to have fluctuated a good deal upon this head. 1q iome of those of 1796, he occasionally expresses himself in terms of satisfaction at the prosperity of his afl'airs, and his wish to end his days in his own country. As we advance, his resolution to cpiit the Uniled States becomes more definite, till it is canied into execution by the present voyage. It has been said by the counsel, that these letters are not intitled to much credit, that they are a sort of colourable letters, to hold him cut as a french- man for the advantage of his commercial connexions with that country. If we cannot discover a man's real intentions in a private contidential correspon- dence of this kind, with his father, his brother, and other particular friends, and carried on for a num- ber of years, I do not know where else we can look for them. At tirst it appears to have been his design to re- turn to St. Domimro, where he had f'Miuenv lesidt-d, but as the dreadful state of that island had rendered it impossible, and as he had been repeatedly re- quested by hi$ father to returu to Frauve, he deler- Tbe Lit Trom Krerki. laot. Tlir Lri Turn Frkiii:«, Oct. le, 1S03. CASES OrTKU.^rfNKn IS THE , mined upon o..i,,;r to that country. Tt hm bem _^ argued by lii.s ounsd, tl,at this vova-o uasuuivly loi-tlH' purpose ofuiaking- a viMil (o his falhiT, and thai he n.teuflf.l to relmu i„ /ia(/immr: hiu ii h impossible to road ihos,. haters withonl bc-iu- fuWy connrmed, that it uas his intenticii to have ths Sla/es entirely, and to transfer his doniicil, and his whole pr.perly to bis nalive plaro. 'Mns appears plaudy iVoni the whole series of lelters ; fi.>, his plan of removal seems to have been completely arran-(.<|. He is xvindinjj up bis allUirs, and j)roposes to sail tJie next smnmer! In a letter of ihe 2.>d otWormfjcr 1 «()_), to \aufnck he says " I will ship all my little capital and sail to Fninre in the spi in-" The 2.3d to bis father, " J wait for the ap|)roaeb of sprin- to change my batteries and seek my forlmje elsewhere.' In WOP,, tith Januartj, " 1 bave nothing- more to do but sh'ip my small concerns, and com.^ to bini." Ijis rent for bis house e^ipired the lOth of A/y, and he "wishes tJiatmay be his last day of being there." tie speaks of his " having- sold his bouse, and of taking bis two negro girls with him, and shipping- all bis little ca- pital." In short, from the \\hole tenor oft' > cor- respond( nee, no person can hesitate a momeiit ro pronounce that he bad quilted bis domicil ,e, rica, and was going with the whole <.f bis concerns to take up bis abode in France. lfIRALTV. : hns hrrn fiillicr, aiirl .' llMi II is lu'ili;;- fiiNy Itave (!i3 il, nrifl his is UjJpOHI'H >iri tl)(> iiist lOiiioMieiit />nf, I7«» cl.aiarler tt r o"t "• ""'i'r'^' •"" ""■"- "f ^"-^'i . e ti? r " ""'' i^"™'"- ''"'"■■ilv, to avoid he J»,,,e,. of ,,-a,.por.ins lm..self„„.l i, . p,.„ I y "oujicii, aiw) beMji;; it to sllier thifj ii*t(l or a Ijiongh a erefore a but little captured It cannot 1 i«lea of • euioval. no steps •ace, that Ijcfore he hich had til tin, he i should xpressly, lit ion of ances ia iclusive, loudema hriiig; ia >nuatioa 4 COURT OF VICE-ADMIRALTY. of war, he had totally abandoned his intention of removing to France during the continuance of the war, and designed to returij to his doniicil in the Viiiled iSlales. A very full and satisfactory affidavit was after- wards brought in, upon which the goods were restored. 9 The Lfs ') nnu Kni RES. Oci. I.', La Reine Des Agnes, Le Chevalier, Master, taken by His Majesty's ship, Aurora. _, Novemher i5, SENTENCE. lba3. J)r. Croke — HfiHIS is an extraordinary rase. It Piwf..rt.,t«.( J- is an application to the Court for fiLnn'.'!!; the condemnation of a vessel which has been seized, fcr^'.f;:^'* not on behalf of the captor, but of a person to whom he has sohl it. It is irregular in every respect, and not one of Mis Majesty's instructions relating to proceedings upon prize have been observed. Neilherthe master nor any of the crew, have been produced for their examina- tion upon the standing interrogatories, nor has any af- fidavit been offered to account for ihe omission. The ships papers have been brought in, not np..n the oath of the prize master, or any person on b.iard the capturing ship, but of a mere stranger, a man Wlio went accidentally from this country after the rapture was made, and who must be entirely un- acquainted with every circumstance relating to it. The captor, not only before condenmati(m, but be- fore any legal steps whatever had been taken, has sold the vesst I to a person of this province. If ihe nght to prize even rested only on the King's procla- mation, no interest whatever could vest in the cap- tor till condemnation. It has uniformly been held, ihat till that period the possession pf the captor is i ! li JO The La Keinr Des Agnes Novtiiihtr 15 1803. CASES DETERMINED IN THE a possession merely, under the anthorily of tJm Co»rt of Adniiiaity, on trial for those persons who shall ultimately become iniitled jo ir. By this sale therefore before that time, he has not oi.ly disposed of v/hat he had no right to .sell, hut has also been guilty of a breach of trust, by partinj,^ with a pos- session which could not leoally be transferred with, out the authority of a proper court. If captors suppose that a Court of Admiralty is merely an appendix to a fleet, to hold up the tail of a capture, and just to -jve it the last seal of forma- Jity, and that it is under their controul and direc- tion, ami subject to their caprices, they Jiave formed a very erroneous opinion upon the subject. As be- tween Great Britain and other countries, whether enemies, or neutral powers, they are established under the general conventiouil law of nations, and of particular treaties, and are bound to execute the same impartially, as if they were composed of per- sons entirely independent and unconnected with either party, and were situated in an indifferent country. Considered with respect to GrefU Britahi only, and as between His Majesty and his officers, and other subjects, they are invested by special commission with all the judicial powers and autho- rities of the Lord High Admiral of Great Britain; and the persons who have the honor to preside in them, are the commissary's depr.ties, or lieutenants of that high officer. In this capacity as it is theii- duty to obey His Majesty's directions, whether con- veyed m h,s proclamations, in acts of parliament, or in particular instructions, so they are bound to see that they are observed by His Majesty's officers, and by all other persons ; and this is a duty which this Court will endeavour to perform firmly, and conscientiously, whatever murmurs or discouteat it i E lily of the ersons who iy this sale ly (lispo.setl also been vviili a pos- LMiecl uitlin Iiniralty is the tail of I of furnia- and diiec- ive formed t. As be- s, whether stablished tions, and "iecute the ed of per- ^ted with ndifferent (t Britain s officers, y special lid autho- JSrituifi ; reside in 211 tenants it is their ther con- rhanient, l)oiind to s officers, ty which uly, and QUtent it COURT OF VICE-ADMIRALTY. 11 The "Ln HicrNB Des Agnbs. may occasion in those persons who stand as parties before it. Tiioiiijh the viij;lit to prize is given by His Majesty jsevemher iT in his piocl>imation to the captors, yet as that pro- clniiiation is always followed by acts of jjarlirtment, and iiisirncti'ms pro'.'ecdingfroin the sain'' aiUhoritW it is held thai tin' directions for proceed in:^ in cas of prize are a sort of conditions annexed to the oii^ giiial grant, and therefore that va- iKUi-observance v of Jiis Majesty's dinctions, and other niiscon«luct,\v^^"^J-QlJ^ amount to a foifeitnrc of the 2:eneral right to prize. This has been deci(h d in many cases, in particular in that of the SpecnhiHon, Rotipel, where for a much smaller misconduct than appears here, it v.as held that the captors had forfeited ;heir right to the prize. What degree of irregularity will amount to a forfei- ture it is unnecessary to inquire, it is sufficient that, in this case, all His Majesty's instructions have been set totally at defiance. However unpleasant, there- fore, it may be to my own sensations, I should not perform the duty rerpiired in this station, if 1 gave the sanction of this Court to such proceedings, and I shall therefore condemn the vessel, not for the use of the captor, or purchaser, but to His Majesty absolutely, not as a droit and perquisite of Admi- ralty, to which it bears no resemblance, but to His Majesty's jura corona, as a jiortion of that original right to all captures, which, in this case, from a breach of the conditions of the grant, have not been divested out of hiin.* * This case was decided upon the common law of the Court of Ad- miralty, iiut in sulis((|ii(nt prize acts, as tlie 45 Geo. Ill Chap. 72, Sect. 32, it was expressly emictcd, " that it shall be lawful for the judije of the Admiralty, upon proof of the breach of any of His Ma- jesty's instiiictioiis, or any offence against the law of nations, to ton,- ^ema the prize to His Majesty's use aud disposal.". 12 Kovnnbtr 16 1803. CASES DETERMINED IN THE The VhNus. Oakford. Enrniv's r«tt If! cS'd. npAKElN by the Lapwinjr, Captain S/cene, on « voya-e from Charlston to Bourdeaux, which commenced on the 3Ist July 1803. The cargo con- sisted of colonial produce, and, together with the ship, was claimed by the master for Messrs. Le Paux and ToiUain, of Charhton, as American ci- tizens. Judgment.— Dr. CroJee. The regular proof of property in this case is de- fective. Wilh respect to the «hip, it consists n.erely of a certificate from the magistrates that Upnuj^h^^ sworn that it belonged to himself and the other clai- mant, and a sea letter obtained on the oath of the master On the other hand, though it had been a foreign vessel, there i.s no bill of .ale. nor of course IS It iTgistered. As to the cargo, the invoice and bills of ladmg express neither account nor risk, thou-h they state it to be the property of the owner of the ship. 1 he master deposes that he knows the clai- mants to be the owners, because he saw them take an oath to that effect, that he saw a paper called a bill of sale, but he knows not from whom, nor the contents. They also gave him possession. He says likewise, that they are owners of the cargo. He states as a reason why she had no register, that she had been a foreign vessel ; and though he has shewn himselt so ready to swear to the property, his con- nexion with the vessel commenced only ten days before she sailed, and three weeks after the cargo had been shipped. Theb6, a passenger, professes, that he had no knowledge of the schooner prior to the time of seeing her a few days before he went on ■•!0«l HE '4 Skene, on « 2aux, which tf cargo con- ler with the Messrs. Le Imericati ci- case is de- ists merely Lcpnujc had olher clai- nath of the lad heen a r of course •voice anU isk, though n\ex of the s the clai- them take ir called a I, nor the He says irgo. He , that she las shewn , his con- ten days the cargo professes, r prior to » went oa 1 COURT OF VICE-ADMIRALTY. board, and there is nothing in the other examinations io confirm the niaster*8 statement. Under a deject of evidence, which is admitted by the claimant's counsel, the only question to be con- sidered is, whether they are entitled tu farther proof. As matter of right, they certainly cannot claim it; as an indulgence they can scarcely be allowed that privilege. It is clear that every art has been employed, to keep out of sight the real history of this ship and cargo. Not a single paper appears which is dated before the 23d oiJul^, a week only before the voy- age commenced. The master, and the whole of the crew, were not shipped till the same late period ; and the owners do not seem to have furnished the master with that authentic information, which a longer acquaintance with the vessel might have enabled him to have acquired by his personal ex- perience. T/ieh, the passenger, is evidently better acquainted with these transactions than he is wil- ling to allow. He appears to be a confidential friend of the asserted owners at least, for in their letter to the consignee, they direct him " io take Thebes advice as their oivn." Yet he is impenetrably iSilent about her concerns, and he affects even a fas- tidious delicacy not to interfere in them. " // is not his business to attend to such things," and after being on board nearly three weeks " he did not feel suf- ficient interest to enable him to perceive that six sailors were employed in navigating the vessel." A satisfactory reason for this secrecy may be found in the declaration of war, on the 16th of May, 1803, and which arrived in America in the month oiJuly, just before this vessel sailed. There is proof that this was a French vessel. The 13 The Venus. ^— ^— m tiwembtr 16, 14 VlCMH. hurnnlirr iri, 1H03. CASICS DRTKIIMIIVRD IN TriK mns(n- .n- with u rrenrh n.astr rm,ch co- lonis, ihat Wnvv was a man nanud ThvU on hoard pvniy: onhTs (o the carpenter, and Ihe mate tohJ iiiii sl.e eame Tron. iimMoupc. lie was inCormod that Ihvhi was (he owner. Mahmj was on hoard also wh(>n she was under ^W* colo.ns. The n.ate informed him - that Iticbc was the owner, and the merchant oi' Ikm^ that IS. owner of (he <:aroo." lie .leposes, that the pre- M>nt ear-o was then stowed, and he (»hserved ThcU ordermo; ha-s t«» lu.. mended ; he is positive irom the i«.((»rma(,on of Jhe n.ate, and the rest of (he crew, that I lube was (he owner of the vessel and car^o. II then the evalenc(> o( consistent, nneontradicled, and nnnnpea<'hed witnesses, is to be believed this Avas a I rank vessel, ami the property of .VJ,-. TUeU, aswasalsotheear-o, and tlu-se circmnstances re- ceive great conhrmation fronj the care to conceal them. If any ehanoe of (he properly took place, it was inuler a n.ost snspicious slate of attUirs. It must have been immediately upon the arrival of the in- tmnKition that war had been declare.!. Jt was after the cargo ^as on boar.l, a >feek (miy before sadin- and alter the .lestination was settled. Ve( here fs' "either a lull of sale, nor any proof whatever of a »i;n.ster. If u had been really transferred, under circumstances so uuiavourable, tlic ciuimaut« must IK vessel, and ■,7s Im (iin* ill n now. Jt JH •e Wius lying Hrorc, with master ami l1 airivod iti (eposes, that FrencA co- '(! on l)()ar(l, i mate tohJ IS infonuod was uiidof him " that >riier, that at the pre- •vud 'rAe/ji Irom the the crew. , ul . .1 • '0 Jtradicied, -§ c'vcd, this Mv.TAedS, ■ 4 taiict's re- ,.■ conceal ■-":^ ■'$ M ?e, it ^va8 % It must of tiie in- was after ro sailiij«j, k. ' t here is ever of a ^ (), uiuier tutb must COURT OF VICE-ADMIRALTY. have known the necessity of putting full documents on hoitid ; Ihcir not having tlone so, would be con- trary lo the tisiial prndtneo, with which mercantile men oidiiiarily ('ondnct their affairs. 'I'his omission f;ives fidl credit to what is deposed by many of the witnesses, that Thebc was not only the original owner of both shi[) and cargo, but con- tinues to be so. Jones, the steward, believes the vessel to be brought in, because TheU, a Frenchman, Is owner of ship and cargo, that he had the sole management, and he heard him say he was con- cerned in her. lie In ard him say he had been on board of her ever since she had been built ; he heard him tell the captain what the cargo cost, and how it was stowed ; and that there were hoops for dunnage, and he had a knowledge of all her provi- sions ami stores. This is confirmed by Brodcricic, who says that Thebe is concerned in vessel and cargo. He deposes to a conversation between Tliebc and the master, iu Mhicli it ap})ears that Thebc had ordered rice for the use of the vessel. 3Ialony testifies to the same ])mpose; and has no doubt if the vessel and cargo are restored, they will belong to him. Another per- ^on proves his giving orders to the carpenter. On (he other hand, there are no acts of ownership, proved in the claimants. The formal papers are as jueagre as possible. In the instructions from them to the nuister, he is referred entirely to Agassier, the consignee, at Bourdcaux, " he having their orders on thai subject." In the letter to Agassier, he again is *' to resort to Mr. Thebi, ivho ivill direct him, and whose advice Ihey will take as their own.'' The master swears, that, on her arrival at Dour- deaux, the ship was to be sold. Where were the iitle deeds? There were uone on board. Where 15 Tim Venus. Nvrttnher 16, lUUS. 10 CASES DETERMINED IN THE v^.vn. /^^s »^e anfhority for the sale? None is given to ^^^^M.^ ''VT'lT"f • """'' '" ^^'^ ""*^^«^'-' no"e is produced im. to / //r^e. I r , hen u e take the fact as deposed to by the ina-ster. «ho is reitaii.ly competent to Mieak to so matenal a clrc.m.s.ance i.. rehition to \m vessel, that .sAe «... to be sold, since no power to that eflect emanated fro.n the claimants, TheU must have had It n. h.s own right and therefore must have been the owner. Mr VAei^has bee,, bold CRougl, to 8«ear, "tbat lie has no mterest or concern whatever, directly, or indirec.y. m vessel or ca.s;o, and ,hat he ha I no kno„,c..se whatever of the schooner, „ri„r ,„ the tnne of seang her a few days before he went passen- ger ■„ her." though there is a pass which sheL ,ha, liesaded in her to Guattaloupe, in 1801 ' .1. J H*™* ^:T ""* *^P''"«"i'"'- He was told «Mt the vessel had changed her colours to go to tmuce, and to deceive Brituh cruizers, and that aT4^*< was called a passenger to conceal the pro- perty from those cruizers. to carry on thedecep.bo, took all h.s trunks and baggage out of her; and fresh ll7 ""'' "'"'■""'' ""'" "'^«' "«="■". «^ a It is not necessary to enqnire into the nationaJ character of TheU, he swears hin.self to blan -4»,mc«„ citizen, and that he now lives at Charles- ton In the pass hefore-mentioned, in 1801, he i, «.led asubject of 2)«ma,A, the master says, he was a planter of mrtinigue, we trace hi™ ItGuaZ nn,n.r 7'^ ^^^ ^"'"S *° ^'*y ^•""'^ time at ■ Homdeaux, where his father resided In this case then, the original evidence being essentially defective it. every material document! 5 is given to is produced pposed to by to ^vhen! she discharj^ed her cari»o. IJere she lay four months, took in cop|)er in pigs, aiul Jesuits bark, sailed frou) thence to fwuiuca/a, took in the remainder of her rarf>o, consisting of cocoa, and sailed in Februanj last, for ^ew York, in which latter part of her voyage she was captured. This return cargo is slated to have been purchased out of. the proceeils of tlie(jutward cargo. This trade with the Spanish colonies, was carried on under a Spanish licence, which was left with the Vice Kov of Peru. Two claims have been given : tlie one by the master, on behalf of John Jackson, of JSciv York, as the sole owner of the ship, and for his own adventure. The other by Edward GriswoUL Wil- liani Cutting, and James Baxter, for themselves; and Brockhoid Livingston, Robert Gilchrist, Thc- vdosius Fowler, and Josiah Ogdcn Ilqfman, of ISew, York, jointly for the whole oargo^ consisting «)f 739,947 poimds of cocoa, 697 bars of copper, and 143 boxes of Jesnits bark; and for Brockhoid Livingston separately, for 1572 dollars. The evi- dence consists of two affidavits annexed to the claims, the e\an)inations of seven witnesses, and four paic( is of yhips papers^ which were found at diilerent times, aud in dia'erent places. The first object is to asceitain to whom this cargo really beioi^^s, upon which, and upon the na- ture of the trade, all the questions of law in the case arise. Church, the master, and Baxter, the supercargo, M'ho are of course the principal witnesses, both IE (I saiiiMl fo tllOUt l)l(.'!lk- I, and sailed id to L.iiiia, slie lay four cs nil's bark, lert'inaiiidor 1 1 .sa'ilcd in I latter psut riiis return out of. the was carried left with the one by the Nciv Y'or/i; or his own su'old, If'ii- theniselves; ^/nist, TUc- um, of Ac/f )nsisling' of copper, and Jjrockliold The evi- ied to the lesses, and e found at whom this |)ori the na- lavv in the lupercargo, sses, both COURT OF VICE-ADMIRALTY. «wear tiiat the claimants are the sole owners. Burrit deposes generally to the same effect; but I shall have occasion to consider his evidence more particularly. With this evidence agree all the papers which were delivered up to the captors, and are contained in the list No. 1 . There is a contract entered into, for the arrangement of the transaction between the present claimants, in which it is agreed, that Livitifrstoji shall be the manager. To hin) the vessel was chartered for the present voyage. There is an agreement between the owners onhe cargo, acting by Livhtgslon, and Baxter, by which he" is appointed supercargo. Baxter is admitted to a share, and a receipt is given by Livingston, for a part of the consideration. Jn the invoices and bills of lading of the outward cargo, the goods are stated as the s')le property of the clainiants, and they are sworn to in the joint affidavit of Livings- ton, Gilchrist, Griswold, and Baxter. In the in voices and bills of lading, of the return cargo, the same ownership is expressed, and Baxter swears, •• that no subject or citizen, of any foreign state, has any interest in Ihem." Jn the instructions from Livingston, to the supercargo, in case of capture, he IS " to claim the property as belonging solely to citizens of the United Slates, as no foreigner what- ever, IS m anywise concerned in vessefor cargo " In none of these papers does any other name, or interest appear, but those of the claimants. 13ut It happened, that besides these papers which were delivered up by the master, another parcel was afterwards found in the chest of the mate, and more m Captain Church'^ box, and in Mr. Baxter's writing desk. These concealed papers introduce a new character into the drama, a Mr. Barrosa, who c 2 19 Till! HEnxiMKR. August itit, 1804. £0 CASJCS DKTL'RMrNf.-f) IN TUG Tlir HMMirMrn. J'' '^t''* <• » 'Spaui.s/i inenlfaiit, and appears to !iiiv(* •;;;^;;j;^- Inul a consicU^raMr sluiic in tlur l.iisi.Mss. 1W.4. It lias Im..,.ii aru,u.,| j^^ tl.o caplor.s, that .son.,, of those papers -o th,. |(>nol!, of prnvin- /Jarrom t.. liave Iieen tiie sole owner of these {jjoods. And in- cKu'd snch an ini;ienee nii-hl l)e niach- fioiu >uuw of then., iftaken sin-ly. Theio is a poxve.- of AHor- ney fron. hin. to JJfulcr, it. which the outward t-.inj:,, IS stated lo he !a(h'n on his ac(;oiint and iisrpi>', that the vessel sails in virtue of a royal privih-v nhi, h ho possesses, and he appoints y>V.i/(T snpeivai-o, with foil powei-.s. The hills of ladii.o- and eh a.-- aiices at (Jmnca/a, a eertilieale fioni nu.vin\ and other doniments in.ply the same sole ownership. «oine letteis from the consignee, seem likewise to bear that n.eaning-. But these mere foi-mal papers are snlliciently explained hy the i.atnre of the f.ade. It was a trade to a Spanish colony, it was carried oil under j;reat restrictions, and was conlined to ifponis/t subjects, the possessors of a special licence. INo forei-n name could appear in it. The e.xporta- tioii froui a Spanis/i colony could he accomplished only by the person licenced. And with respect lo the letters, they are not so clearly expressive of a total ownership, as not to be capahle of oxolanation, an|it'd li ri\s|)tct »o esNive of a xohiiiution, lial share or X|>laiialioij, lirect ()j)po- ile persons, be involved ■ interest in Wakeman 1 tliat cuj)a- itioii. He COURT OF VICE-ADMIRALTY. has stated the whole history: he nays that the licrnro disposed of it, or part of it, ioMv. Liviuj^ston. That it was a permission to J allow the Spanish inarfpns to import jjoods in # foreijr,, bottoms into the Spanish settlements, in Smith America, and to transport i)rodnce to any part of the United States. He believes that the eargo belongs to Livingston, and the other claimants, because he knows that they purchased the outward cariio, which was sold for tlieir account and benefit, at Lima, and the present cargo was purchased with the proceeds. He believes them therofore to be sole owners, except that they are to pay a proportion of the proceeds to Mr. Barrosa, for the benefit of the licence. He has heard he was to receive 50 per cent, on the profits of the voyage; and if there was no profit, he was to have nothing. He knows that another vessel had sailed under the same licence, upon the same terms, and which had been cast away. The persons concerned, consider Barrosa as having an interest. Osma, the consignee, in a let- ter to his brother, speaking of the present cargo, says that Barrosa ought to carry it to Europe, where it would fetch a large sum. Barrosa's nephew says, that his uncle will profit by these spe- culations, if they prosper as they hitherto have done. There is another letter from Osma, advising him how to proceed in sending other vesselg. A mer- chant named Tarranco, in a letter to Barrosa, com^ plains that he had sent goods little suited to the country, that Baxter's information would be useful j and that if the adventure had arrived in time of peace, he would have lost 25 per cent, of his principal. fl nRnKIMFR. " ' < AutiufI lit, Il li i 22 The Hekkimtr. Au/fiist i»t, 1UU4. CASES DETERMINED IN THE These lefters tl.onoh they do not prove to the full - extent ot a sole interest, yet they plainly shew that It was well known, and understood that Barrosa was niaterjally concerned in this cargo, and confirm the evidence oUJurrit. On the other hand, the cre- dibdity of Baxter, and the master, who deny any interest beyond that of the claimants, is completely shaken, from the prevarication in their examinations, and from their swearing " that no papers were made away with, or concealed in any manner whatever, and that they knew of no others than what they produced ;" though other papers were afterwards discovered in the master's own box, and some more had been concealed by the third mate by Ba:vter's own direction. It has been said by the counsel for the claimants, that some of the evidence in favour of the claimants proceeds from such a respectable quarter, that it is mtitled to the fullest credit. Besides the general unimpeaehed character of the other gentlemen, Mr. Livingston, it is alledged, is in a high judicial situ- ation m the United Stutes, a Judge of tlie Supreme Court of New York. All these gentlemen have sworn to the mvoices and bills of lading of the out- ward cargo, that the goods contained in them are their sole property. In the instructions to the su- percargo, from Mr. Livinosion, he directs him in case of capture, to claim the property as belonging solely to citizens of the United States, and that " no foreigner whatever is in any tvise concerned in vessel or car^or By the general rules of amity, observed between nations, all persons in public stations are justly intitled to the greatest respect and credit in their respective departments. This court would be deficient in its duty, if it should be disposed to treat with any want of attention, those who preside in fo. HE ve to the full ily sliew that -hat Jiarrosa and confirm and, the cre- lio deny any s completely xaminaiions, s were made 3r whatever, 1 what they ! afterwards i some more by Baxter's e claimants, le claimants ^r, that it is the general tlemen, Mr. ndicial sitn- lie Supreme lemen have : of the out- 1 them are to the sii- :cls him in s belonging id that " no 2d in vessel y, observed tations are »d credit in t would be led to treat eside ia fi> COURT OF- VICE-ADMIRALTY. reign tribunals. To any judicial act of Judge Li- vingston, it would pay the utmost deference, and it would give the fullest credit to every certificate which proceeded I'roni him, within the limits of his judicial cognizance. But if gentlenien will step down from the bench, and intermix with the mer- chants of the country, in such transactions they can- not claim their judicial prerogatives, but they must be considered as upon the i^arae footing with other mercantile men. Their affidavits and declarations, like those of other respectable persons, will be in- titled to credit prima facie, yet they are still open to discussion, and are liable to be disproved by facts, and stronger evidence. If these affidavits and decla- rations are to be understood as negativing all inte- rest whatever in Mr. Barrosa, it is evident that they are directly contrary to the fact. If they are to be explained upon a supposition that the parties considered the interest of Barrosa as so remote as not to affect the ownership of the goods, 1 fear the words are too comprehensive, and too exclusive to admit of that excuse, since it is asserted that no person whatever is in any wise concerned. If, as has been argued, they imagined that Barrosa was not a foreigner, because he was residing at Boston, it is scarcely conceivable how such an error in law should have been entertained, as he had never been admit- ted a citizen of the fJnited States, and the whole of the present transaction was founded upon the sup- position of his being a subject of the king of Spain. ■ Barrosa s interest is evidently that of a partner in this transaction. It is not necessary that all the partners should contribute money, or in equaj pro- portions. It is sufficient if they contribute what is equivalent to money. Societas, uno pecuniam confe-, rent alio operatn, contralii potest. Nor is it requir<^(|. 23 The HKUKIMyR. Aufiitsl 1st, 1804. 24 Thp Herkimer. CASES DETERMINED IN THE Aiigii'^t 1st, tha a he partner shoul.l share equally in the pro- IM'tem ,la,mu aUcr senliat, lucrum vero commune sit. VVe have „„t the conhact entered into between the part.es „„rd„ „e know whether 2J«..<«a supplied any o the f„„,|s tor the outward cargo. Take it pon the s„pp„s,t,on that he did not, still he found call "iT "', " '"""'■ '■'^^'' "-^y ^''PPl'^d 'he Z:. ,","" ""' '•^'•y ^''luaWe, without it g.au ed as a douceur to a Spanish nobleman, aud u.„ bv « >-'' P-ehased for a considerable sum by Jiarrosa. In consideration of furnishins th.8 important document, and of the aid of his name he was admitted to share in half the profits. These in erests would constitute a partnership under the .ws of any country whatever, from the Roman law to those of the present times. isme!'T ■""" '"'^"'"'' """""^ '"'""''*■ oUiarrosa tsel'. Whatever might have been the nature of this nt res upon the outward voyage, it is now becon,: real. Jt ,s actually on board this vessel, it exists in a tangrble form. Burnt has calculate 1 ,;!;: ^e «,v-/ r " "" """■'"•• "''''^'' ''>■ •J^sionsia de countries, ,s even insurable. Barrosa haviuo- ral; "%"^^ ,1"!'»"<>" i» as to his national cha- chant rf ""•'', '''''7f '"•» to be a Spanish mer- chant. Upon the «b«le evidence it appears that he was a native *><,,„„,,/, that ha purchased th," 1 ete «nd went into America to execute it. The execu- HE ly in the pro- it, ut nuUius rommune sit. between the 9sa supplied o. "j^ake it ill he found upplied the ?, without it B. It was >leman, and onsiderable ' furnishing ►f his name, its. These under the Roman law of Barrosa lal interest I the cargo ureofthis w become t exists in the clear It 108,000 lollars, or cisions in • n:t'rcan- sa having jt in this f>nal cha- 'dsh iner- s that he s licence, e execii- COURT OF VICE-ADMIRALTY. tion of the licence required a continued stay till the return of the vessel. Other incidental business might arise, though none such is proved in this case. He was resident therefore for a special purpose, which covered (he whole time of his continuance there. But tlmt purpose was not only temporary, but it was of such a nature, that the retention of his Spa- nish character was essentially necessary to the per- formance of it. The licence was confined to Spa- nish subjects. The importations and exportations from a Spanish colony, even by licence, could be made by no other persons. The nature of the li- cence implied that the Spanish subject was to go to the United Slates to take the benefit of it. lie could acquire no domicil in the United Slates whilst he was acting upon this licence, and in a transaction which was founded upon it. The licence was in itself a protest against acquiring a domicil. In all the documents he is stated to be a Spanish mer- chant, and in all the correspondence he is considered as under that character. Whatever part of this cargo can be clearly ascer- tained to belong to Barrosa, is therefore liable to confiscation ; but that is not all. It is proved that the other owners, or their agents, have deliberately interfered in the war, " to mask and withdraw from the rights of a belligerent the property of his enemy to so large an amount,* the consequence will attach upon them to confiscate (heir property engaged in the same transaction." Have the claimants been guilty of deliberately concealing the interest of this gentle- man? Now, Barrosa s name was completely kept out of sight. It does not appear at all in the osten- sible papers delivered to the captors. The entries Sm Eenrom. Rob, 2. 1. S5 The Herkimer.' 1804. ^\h m imti. 'tf r.vsMs I)kti;hmini;/) in tum *""' ;l«'»«'«i.rrN inio .„hI u.,( oC (I... .S);,,;,/,/, moHm wlnrl, u. rr nrr..s,N.,nlv i„ |„,s „... ^uvr ..„( ,„„, •'""■'''• ■ "".V «Ml.« (I.MiiiurMl j„ uhirl, il .11,1 „p. I»«''»«-. /'"P'«N h„| ulu.J .h.-v |,.,.l .l,.|ivr,vd *,.,,. yvi tUu ••"'«'• l»»M">'N >vnv toniHl Ji, j|„. vuisWys hniik. and *• n.iisnlnuMr miinlM,- j„ jl... imssrssi,,,. t»r rl.r (l.in! iniWr uhu-h hr surms unv ,lrlivnr,l to his <.ui„ •»V iiaxfa-. niHl whirl, nMirruhul impris r,»iHmiMMl thr rnir Hla(<> nrih.< hnsinrss. || is (rii,. (hiil /hn- tn ru.ur ro.Nv.u.l aO.ruunls wi(h u„ aMi.hivil. a.l- T!T ''"" •'•""''"'"''"' •' P'««l«i"« •V|M>....u,ro. Mnl Iw m«v.Mihvii|or,l jhis N.rivt (ill an,M.v..,v.l i„. iM.i ,ho conmil- •". |it >vas a ,irlihna<,' art, havii.j; l,,..,, Iwthvv plan- «umI. a.ul a«lhnv,l to till ihHast mo.u.ijt. Thr third UKito s^^, ars that thr papns ^^r^v yivn, („ hi.u off < upo //,.r«. 'rh,«y n,nti„u,«,l tho iourcahuo.it at JluMuuoof tho rup.nr... Phov stoo,l stoutly to it "l»«'» th.'.r lAauuuatuMi uu.hr oath, and no hint >vas jiivou (ill «|\or tho papois >v,.,v tbuud. Thoy ^«y nothiu- of liorrosa in (hrir oxa.uiuati,.us. hut dcMiy auy uitnvsl luy.uul iho daima:.is. As those p. .-sous aiv tho huvful auvuts of tho paitios. thoir aots N>ould ho couolnsixo a-ainst thoir priuoiimls upon tho oon.Mnil ri.lo of law, a.ul luoauso it i« »»anl ly oivdihlo that the y Oiuild havo so aotod. with- out thnrovpr,>ss *liroot.ons. si.uo tho ivspouHihility Mould hau> othorxviso (.oon vory alanuiu-. But with ^;*lHvt to tho ohmnants of tho oa,>;x,, iJ is b,•ou^.ht d.,.vtly ho,uo to thoiu. Lin„^,to^^ in hi. iustruc- tuuis to tJic luasicr, dechiro^j that no foreigner what. ■J4 .« I i IMC ^'/Hini.s/i |»f»rlM, ivrrc iiol pror 'li il tliil ii|». • wiiriN of llio >' know oC no •i|», y«'( t\w. 'n Iniiik, aiul I oi'ilw ihin! il (o liis euro !«♦ (liiiT liax- iHidiivil. ail- «V|M>IH.MIC0. >iiii;vs, ill his inoiiMiitiiry !»«' roiu'ful- l»t>f()rt« pluii- . Til,. f|,i,.,| I to lijin oil' '<'al!nont at toiiily t«> it 11(1 no hint ind. Thoy ations. hut As (htso • litN. tlioir pnnrijmls *»iuso it i« cUh\, with- [>onKil)ility lint uith is broui^ht list instrnc- ;ner what? COURT OF VICE-ADMHIALTV'. evor, is in any wise; corini'iiird in vcmhcI or rarjijo, and (he othrr ovvncis swrnr J(» Ihrir sole property. This is an oslrnsihh' paper, ts, as that no foreiy;n name could appear in it, it must take Ihc consequences of that character, and must he considered as Spanish property."* Ah to the other arguments, alledged hy the captors, that this cargo was intended to be sent on to Europe, and theretbro that the voyage was a violation of His Majesty's Orders in Council, I can find no proof. There is however upon the other points, iiurticieut ground to condenni this vessel and cargo. flote. This case was Mppealcil, but the appellants did not proceed, «nd the iuhilution was relaxed, January 16, 1803. See another case respecting this vessel concerning the proccedi, i»fra. * Princessa,, Rob. 2. 53. 2T The Hl'IIKIMKR. 4unuiit liit| tU04> 28 CASES DETERMINED IN THE \m Augmt 8tli, 1801. Blockade of jyfartiniiiue. EvidflKc of the liio aiiJ kiiowlr(I(s;c of the parlios. Ctfudeuined. M The NaxVcy, Ilurd. fjniUS was a schooner taken by the Boston, Cap. tain Douglas, on account of having broken the blockade oi Martmico. She was an American ves- sel, chartered by John Tnhel, oi New York, to carry a cargo of provisions to that island, where she arri- ved the 29th of March 1804, at the port of Trinitb, from whence she proceeded to Saint Pierre on the 3d oi April, sailed out again on the 15th, on her re- ^rn to New York, and was taken upon the 29th. Ihe cause now came on upon further proof. Dr. Crake.-' At the former hearing of this clause, further proof was directed to be obtained upon these points; first, wliether the knowledge of a strict blockade oi Mar^ iimque, and particularly of Commodore Hood:s noti- fication of the 7th February, 1804, had reached New York before this vessel sailed from thence; and, secondly, whether the blockade of that island had been suspended from about the 28th of March, and had continued to be so suspended, till after the 15th oi April, h remains for the Court to consider the proofs which have now been brought in, in conjunc- tion with so much of the original evidence, as has not hitherto undergone a complete discussion, and the whole case resolves itself into two questions ; the existence of the blockade during that period, and the knowledge of the party. That a close and most rigo'rous blockade of this island had existed, till about the time when this ves- sel arrived there, is established beyond all possibi- lity of doubt. It is ascertained by the best of all [IE Boston, Cap- : broken the nerican ves- rlc, to carry 3re she arri- ; of Triniti:, ierre on the , on her re- 1 the 29th. oof. rther proof )ints; first, le of Mar- hod's noti- ched New snce; and, island had larch, and r the 15th nsider the conjiinc- ce, as has ision, and [uestions ; it period, Je of this tliis ves- I possibi- sst of all COURT OF VICE.ADMIRALTY. evidence, the ofTicial dispatches, Mritten by Mon- sieur Viliaret, the Captain General o^ Mar Unique to Talleyrand, the French minister of the Marine, con- firmed by a multitude of private letters from mer- ciiaiits to their correspondents in America, and other places. But it is alledged by the claimants, that about the 28th of March, the British force was withdrawn from this island, and that the blociiade, during the whole time the vessel was there, was totally superseded and relaxed. I shall consider first the claimant's evidence to this fact, and 1 njust observe, that the further proof now brought in advances our information upon this subject, very little, if any, beyond what appeared in the original documents. Here is the afiidavit of Tonjket, who was resident in the island at the time, and who deposes that it was the general opinion there^ that the blockade had ceased. That this no- tion was entertained, appeared clear enough before, but such an opinion will go a very little way to estab- lish a suspension, unless it is proved to have been founded upon facts, which would support such a conclusion. What then are the facts alledged? No vessels, it is said, had been seen from the island, except that thy Blenheim had once looked into Saint Pierre's, and another vessel or two had occasionally appeared. This is no proof of a relaxation. The vessels might have taken their stations further off. Distance is immaterial, and nothing can be consi- dered as evidence of a suspension, which is consis- tent with an actual blockade. Here are affidavits from two masters of ships, deposing that they had gone in and out of the harbours without molestation, and without seeing a British ship. The same cir- cumstance was proved before. By the whole tenor of the evidence, neutral ships had gone in and had 29 The Nanct. August atli, 1804. do The Nanc*. — Ill-* August 8th, 1104. ■ . 'I CASES DETERMINED IN THE gone out, even during the strictest period of the blockade. Captain Ferris informs us, that, notwith- standni- the utmost vigilance of the cniizei-s. they took advantage of the night, of the occasional ab- sence of «h,ps in chasing, and other services. These captanis have not informed us of the time, or man- ner, m which they entered the ports. They have not stated that they went in openly and boldly in the face of day. and, uidess they had so stated, their evidence will not prove that the ports were open for the admission of neutral vessels. Captain Nic/iards has deposed, that after he had come out of Marli- ntque, he was stopped and examined by a British ship ot war, the Mercury, or Mentor, and suffered to pro- ceed. But this vessel formed no part of the blockading iorce, she was employed in other services, and had a transport under her convoy. A ship coming from ^reat Britain, could know little of the state of this blockade, and her conduct therefore could afford no proof as to its existence, or otherwise. In the Juff'- ran Maria,* the vessels employed in the blockade had searched neutral vessels, and permitted them to enter but the state of this blockade cannot be af- fected by the conduct of vessels totally unconnected jvith It. Jt is said that other American Captains have been examined by the blockading, ships, and have been permitted to enter. Of this no proof whatever has been brought. Vessels, it is said, which had been taken in going in, or coming out from Martinique, have been released by the sen- tences of the Courts of Admiralty at Antigua, and other places in the West Indies, and one sentence to that effect is produced. But no inference can be formed from thence, since we are unacquainted with ♦ Rob. 3. 147. His eriod of the lat, notwith- •iiizers, they casional ab- ices. These ine, or man- They have 1(1 boldly ill jitaled, their ere open for ill Richards ; of Marii- British ship sred to pro- blockaditis: ;, and had a Dining from state of this Id afford no [n the Juf' e blockade ted them to nnot be afr ticonnected ^ Captains ships, and i no proof it is said, orning out y the sen- Uig-ua, and lentence to ice can be linted with Court of vice-admiralty. any of the ci;f aiiistances composing those cases, and are totally uninformed of their lelution to the present. So little then being the amount of the evidence produced by the claimant, to prove a relaxation of the blockade, let iis proce« d to consider the affida- vit of Captain Ferris, as to its continuance. He de* poses, that the sipiadron under Commodore Jloud was employed in the close blockade of this island tdl March, without intermission, that about the mid- dle of that inoiuli, a court martial was held at Lucia, where Commodore IJood assembled all the vessels upon the station ; I hat the ca[)tains all went on board the Romuei^, and that during the sitting of the Court all the other ships went out and cruized round iVur- /iW^Me under the lieutenants; that on the 23d of March they all sailed io Burbadoes, to join {he Suri- ttaiii expedition, leaving only the Blenheim and Rom- net/, with strict orders to carry on the blockade; the Blenheim being directed to blockade the ports of Fort Royal and i^ainl Pierre, and the Romney, the weather side of the island. Captain Ferris him- self had command of the Blenheim till the 23d of March, uheii he was appointed to the Drake, and sailed with t!;e iJeet to Surinam, from whence he returned to Marlinique the 1st of June, when he found the Cenlaur off Saint Pierre, ihat vessel hav- mg relieved the Blenheim, and undeivstood that du- ring his absence, the pori oi Saint Pierre had con- tinued to be rigorously blockaded. It has been contended by the claimant's counsel, that one vessel is not suificient to constitute the blockade of a port, and that a blockade is a legal idea, which is not to be determined by the mere opinion of sailors. Undoubtedly, the existence of an actual blockade, and the sufficiency of the force fll The Nanct. Augtiit 8tlt, 1U04. 32 The Nancy. -^ August Ml, 1U04. CASES DETEttMINED IN THE stationed for that purpose, are plain facts, of wliich the Court will take evidence, as of any other facts. Captain Ferris positively swears, that the Diamond Hock, with four shijw of war, are sufficient to block- ade the whole island, and that one vessel can com- pletely command the two ports of Fort Royal and St. Pierre, so that no vessel could enter those two ports without evident'danger. This is an assertion, not made rashly, but from a thorough knowledge' of the subject, from having been engaged several months upon the service, from having seen the chart, or plan, for the conduct of the blockade, and from* having had the command of the BUnheim, during the time when that ship occupied that station, and It is completely established by the circumstance, that oidy one vessel was stationed at those ports] during the time that the most rigorous blockade ex- isted, of which the effects are so feelingly described by the inhabitants. The sufficiency of the force being established, the only question is, whether it was actually applied, after the departure of Captain Ferris. He is posi* tive that the blockade of Saint Pierre was m)t re- laxed during his absence, and, from the means of information, which he possessed, little doubt can be entertained, as to the truth of his assertions. Upon his departure for Surinam, Commodore Hood left positive, and specific onlers to that effect, and who- ever is acquainted with the British navy, and knows with what exactness, alacrity, and ardour, the orders of a commander in chief are obeyed by the officers under them, will have little doul)t that they were obeyed. On his return, he found the Centaur upon that duty, and was informed that the blockade had been strictly maintained. Had the orders been dis- obeyed, it must have been known, and enquiry would IE its, of which other facts. lie Diamond rit to block- sel can com- lloyal and r those two in assertion, knowledge f^ed several n the chart, ?, and from eim, during tation, and cunistance, hose ports, Dckade ex- r described )Iished, the ly applied, He is posi- »'as not re- i means of ubt can be lis. Upon Hood left , and who- and knows the orders he officers they were taur upon :kade had i been dis- liry would I COURT OF VICE.AD^[IRAL^Y. have been made, nothing of WvM kind occurred, and not a suspicion was eiiteitaiii. d that tlie service had not l)et'n dihgeiitly perfi.rnietl : this circumstantial evidence, for it is certaiuly not direct, as Captain Ferris cannot depose from liis personal knowledge, does impress upon the mind a very high degree of conviction; and when it is considered that no con- trarlictory fact, no proof whatever of a relaxation, has been produced by the claimants, it must be ad* mitted that the existence of the blockade, during the time which affects this question, is sufficiently established. Now, as to the knowledge of the parties, and first at New York.-.-\\y the affidavit of the printer, it appears that Commodore Hood's proclamation of the 7th of February, appeared first in the ISIew York newspapers on the 3d of ^;^W/, which was long after this vessel sailed, but it seems that this closer block- ade had subsisted before the issuing of this procla- mation, and might have been known at New York. Some little confusion seems to have arisen from Commodore Hood's proclamation of July 1803, be- fore the real investment took place, and the Consul Barclay's affidavit refers to that period, when he says " he never heard that any relaxation had taken place." Inkel and Arnald have both sworn that they never heard of the blockade, but they are parties, and little attention can be paid to the affidavits of parties, when better evidence can be obtained. Upon a point so notorious, as whether this blockade was known at New York, or not, very full evidence might have been procured, and the Court had a right to expect it; but here is not a single affidavit trom any of the numerous merchants in that place who trade with the West Indies, and of whom mul- titudes must have been able to give information. m TIrc Naitcy. M/enst 8l|j, 1U04. ^^ 34 Tht Nanct. — ^- Jugmt Hth, 1S04. CASES DKTERMINED IN THE Mr. InkeVs clerk, Coch, had been stalionod four - months in the island, to receive and transmit his cargoes. Many letters must have passed btlween them during that period, and tlie situation of Mar- tinique, as to the blockade, must have foruied a prin- cipal feature in the correspondence. 'J'hese were entirely in Mr. Inkers own power; and, if they Juid stated the island to have been as free from block- ade, as he represents it, these letters would have been brought forward, and would have supplied a complete justification of the transaction. No such letters are produced, and it is the necessary conclu- sion, that if they had been brought forward, they would have disclosed a complete knowledge of the blockade. It is, however, unnecessary to push this point any further, since it is more material to enquire as to the knowledge of the fact, after this vessel arrived at port Trinili. And here I must observe, that as fnke/, the charterer of the vessel, had his clerk and agent established in this island, the parties cannot be considered in the same light as mere stranger merchants, wiio might have sent a cargo upon spe- culation, but they must be charged with all the in- formation which was possessed by the inhabitants of the place. That the blockade actually did sub- sist, is already proved, and therefore 1 cannot ad- mit that even if a pretty general report to the con- trary had prevailed in the island, that it would amount to a justification. That an error as to a fact, in some cases excuses, is undoubted, but it must be an invincible error, such an error that the party could not easily remove, and such as would have misled any man of prudence and good sense. In the case of the Neptunus, Hernpel, the master, liad fallen m with Lord Duncan, who informed him i ioncd iuiir iirisiiiit iiis tl l)t'lW»'Cll >n oC Mar- lied ii prill- hese ucro f lliey had Din block- ould have uipplied a No such ry conolu- vard, they :lge of the point any |uire as to sel arrived e, that as clerk and es cannot ! stranger upon spe- ll! the in- ihabitants did sub- mnot ad- the con- it would ir as to a d, but it that the IS would od sense, e master, med him COURT OF VICE-ADMJItALTY. that /favrc was not blockaded. L nder this iinpres- »l'>c^lckade had ceased, were restored, and the captors condemned ill CUoiS* Oct. 10, 1S04. Ul A Court of prize in a neu- tra! country has no autho- rity to deliver a vessel upon bail to per- sons, not the representa- tives of the owners ; and the right of the owners upon recap- ture is not defeated by it. The HiBBERTs, IJapies. 'pAKLN by the Leander, Captain Skene, 17th of August, 1804, oiUSandi, Hook, bound from the Havannah to I^ew York, She was a British built vessel, belonging to British merchants, when ^1 was captured on her return from HoJZsZ EnglanH, with a cargo of mahogany by a FrenTh pnvateer, called the Itestant, ^Captab ZZ Pique, and carried to the Havannah! • nf VV "'II''''* ^^^'^ instituted in the Spanish Court tiL of ir- t' '.T''"^^ ''"^ P'-'^^' *he precise na- at the V/; ]' 'P^^'^^^* "^y '^^' proceedings ^i the Havannah, that the captain of the privateer not bemg able to bear the eipence of man,;^ ^^ the crew, agreed that the vessel should be delivered If larVnff ; y,. " "^""''^^^ «^ ^« ^-bellerias of land offered by Don Manuel MarUnez, and the resident. Cr«c.^ appeared upon the i)roceedinc.s as stating himself to be the atto-nov Tp ^'Aore, and Henru Oellers l^rst In ' ^ "'' /^^+k rr#7 ''^ ^fueis, mt,t and second mates ofthe«M«/,,. that u„ advertisement, by orderTf the *;,««/, governmen, had been inserted tthe captam of the JiMerU should appear, to receive ^ J ^^ IE aken by the of August, ockade had coiidenined :ene, 17th of id from the ritish built when she onduras to { a French u Antoine nish Court precise na- ippeal liad u Europe^ 'oceediugs privateer, aiiitaiuing delivered ;abellerias > and the ant, there ceedings, r Francis id mates ' order of d in the es of the ) receive COURT OF VICE.ADMIRALTY. the vessel upon security ; that his constituents were such representatives by their situation, the captain never having arrived at the Huvamiah, havinj^ been sent by the captain of the privateer to the Uniled States; and therefore he prayed to be admitted in their place to give security, and receive the vessel. The vessel and cargo were appraised at 32,0ti5 dol- lars, the mortgage and his personal securities to that amount were given, and the vessel and cargo were delivered to Crucet upon the 11th Julif 1801, ^ by the order of the Marquis de Someruelcs, the go- * vernor of the Havannah. Under Crucet' s directions she proceeded to New York, consigned to Henry Hill, subject to CruceVs orders till he should be indemnified for his disbursements, for costs of suit, outfit, commission, &c and till he should be re- leased from the mortgage, and bond. She was fur- nished with a passport from the captain of the pri- vateer, stating that the vessel having been brought into the iETamMwa/i, a difficulty had arisen dugauveme^ w««/ followed by a law suit; and that the parties by their attorney, according to the decree of the tribu- nal of war, having given une caution hipothequee, till the decision of the superior tribunals in Europe; and Felix Crucet having given security for tiie value to the French captain, he informed •' all whom it mi'ht concern, that the prize could not be again taken, from the circumstance of the existing responsibility of the security and mortgage." On the bill of la- ding, an affidavit of Crucet was indorsed, made before the American Consul, that " the cargo went on account and risk of the owners, underwriters, and others in England, and was consigned by the deponent to H. Hill, at New York, to be sold, and the proceeds retained by him till the deponent Jould be fully indemnified and paid his advances. &c. and rploQcofI ft.n,-^ fU-, j---j-^=- -- ! V i »? — •^..•.'^^T^ jtuiH iiif sucuriiv uiict niortffaffe. 41 The HlBBKRTS. ■ L II II Oct. loih. *"''*'. Tlie HlBBRRTS. Oct.. 10th, ]< I" hlJ|.' CASES DETERMJNKD IN TFIE In a letter to the consignee, CruceCs cliarj^es for fixpenees and commission were stated af »,y23 dol- Jars. Upon this voyage the vessel was captured, and a claim was given on behalf of Ftitx Crucet, " as owner and proprietor of the ship and cargo, subject to such equitable claim as the owners or nnderwriters might have had thereto iu case the property had arrived at New York."* Dr. Croke. — This was originally a British vessel, owned by Messrs. Hurry, of London, which had sailed from that port to Honduras, touching at Neiv York, in her way, and was captured by a French privateer, upon her return, with a cargo of mahogany and logwood. She was carried to the Havmmah, and was taken by the Leander, on a voyage from thence to New York. A claim has been put in by Felix Crucet, a neutral merchant of the Havannah, for the ship and the cargo, as his sole property. By the law of nations, till a sentence of condem- nation has passed in a competent tribunal of the belligerent power, property captured acquires no transferrible quality. Till then the right of recap- ture is not extinguished. By the laws of this coun- try, the original owner recovers his property upon re-capture, but this is merely a municipal regulation, as between the state at large, the re-captors and the owner. The general question as between the re-capturing country, and neutral, or other third parties, ujust be decided by the law of nations. If a condemnation is held necessary to enable the captor to transfer the prize to a neutral, it is dif- ficult to conceive how any other legal proceedings, *hort of such sentence, can be suflicient. It might * January 1305, war declared agaiust Spain. rFiE '« clmrges for ar ii,923 (lol- van captured, Ftiijc Cracety ip and cargo, he owners or ia case the el, owned by i sailed from Seiv York, ill ch privateer, ihogany and ivanna/i, and ; from thence in by Felix nnah, for the of condeni- bunai of the acquires no ht of recap- )f this coun- opcrty upon il regulation, captors and between the other third, nations. If enable the •al, it is dif- U'ocuedings, '. it might lin. fe COURT OF VICE-ADMIRALTY. perhaps be enough, in this case, to enquire whether . euch condemnation had taken place, and as this I question must be answered in the negative, to di- I rect the property to be restored to the owner; but it will be more satisfactory to examine the particu- lar circumstances. The claim of Mr. Crucet must depend entirely upon the validity of the proceedings of the Court at the Havannah. Respecting the nature of the proceedings of the law Court at the Havannah, we at-e left entirely in the dark. Jf we enquire into the jurisdiction of the Court itself, the names of the parries, the sen- tence appealed from, the Court appealed to, or the appellants, though the extracts from the proceed- ings occupy seventeen or eighteen sides of paper, no information is to be obtained upon those heads! In this^ obscurity we are left only to general prin- ciples. The expressions, and particularly the words sobre el aprisamiento, seem to imply that it was a Court of prize. But a Court of prize, to decide upon questions as between the two belligerent powers in a neutral country, is a thing unheard of, and would be an unwarrantable assumption of supe- riority, inconsistent with the equality and indepen- dence of nations. Such jurisdiction could not be maintained, and if the final sentence of such a Court were invalid, all prior proceedings, and interlocu- tory decrees, must be equally null and void. If, as was suggested, these law proceedings arose from any dispute with the Spanish government, re- lating to entries or duties, or other transactions of a similar nature, they were occasioned solely br «ie vessels having been carried into the Havannah. am the owner cannot be deprived of his right of postliminium, or become answerable, from any acts 45 Tlip Hijiiik'uri. Oct. lOlli, 18U4. P I 44 The HlllBEHTS. OH. loth, 1U04. CASES DETERMINED IN THE of the captiH-, whilst the property was in his - haiuls. it lias been suggested, that the proceedings at the Havannah were founded upon an interference of the i:ipmiish government, on account of a viola- tion of territory, from the place of capture. This, 1 believe, is the only case in which a neutral go-' verunient could interfere in prize, but there is no • proof that such was the nature of the suit. If that liowever, had been the case, the Simnis/i govern- ment by the intervention of its tribunals indeed might have compelled the captor to restore the property to the owners, if the capture had been made within the limits of the ^'^Ipanish territories or might have permitted the captor to retain his prize, if that suggestion had proved to be untrue, iiut in any case the Spanish government could not, without a departure from neutrality, place the trench captor m a bettor .situation than he was before, or defeat any right ol lecapture which the original owners might h.ve. if, indeed, the owners had appeared by themselves, or their lawful ao-ent^ mthe Court at the Havannah, by their co«.va./! they might give validity to any proceedings there had, but without such appearance, and consent, the AW msh oovernment could not by earer, dated nilar import, ! also clearly ature of the riginal plan. be cleared contrabands, hat is, with 1 was faitb- New York, ed to it, all still carried Jnt of sales, specified in his account ;o the same be residue, Ivice. Still en brought carried to the contra- New York, re taken in ght of evi- ls inconsis- i COURT OF VICE.ADMi:?.\LTY. tent wilh the log book, which states that they be- gan takmg in cargf. the .']0ij, of .Ijmi, that the la- ding was completed by the Nth oi /)%, and they hauled down int<. the stream on the 1 7th. without any mention of rtlanding any part of if. for which indeed t^.ere does not seem to have bee., suflirient tnne. Bea.'ing date on the MUU, the.e is a letter trom Oardcre to JJewu.s, in uhid, he is di.-ected to sell the good, for account of Durami, and he spe- c.hes them as they a.e stated in the cont.act of sale, namely the conliaband articles. T^''*^ t'">tl and fou.th poi..ts may be jointly con- sidered. Theoutwa.d, and the .-. tu.n vo^ages we,e one unbroken transaction, in which the owner of the vessel, and of the whole cargo were equally implicated, by the charter-party. Demas was their jo.nt agent. J3y him the outwa.d cargo was sold and the home ca.-go was purchased out of the pro' ceeds, and he gives credit for the f.eight as per char- ter-party. It is impossible to conceive a case where all the facts are more clearly established, and 1 therefore condemn this ship and cargo. 40 The Aram tha, Dtcimher l?tb, 1804. The Schooner Nancy, Huxford. In the Instance Court. ^'J>0. Sec. 14. which enacts "that it shall be lawful to import pitch, tar, and turpentine, being the gTowth or production of the United States, from any of the territories of the United States into the province of Nova Scotia and New Brunswick: pro- vided such pitch, tar, and turpentine shall n.t be £ March ISth, iao5. Spirits of tur- pentine not importable under tlie 33n. Gen. III. Cli. 50. Sec, 14. Importers, means owners. hrituh sub- jects resident abroad cannot im- port. ■ i BB "^ 1^' 1 I ■1 1 i I' in .1 i : ! ' i 60 CASES DETERMINED IN Till? ilarih jstli, iao5. nancT" imported, except l.y British subjects, and in Bri' tish built ships, owned by His Majesty's subjects, an«^^ many of their rights by non-residence. It IS said, indeed, by Sir miUam lilacl^slme (Vol. ,. ,''• ^y-' ," """ "'""'"I '«i-" subjects, have a va- uthn. tie King sallesianee, and can never forfeit by any distance of place or time, bnt only by their own misbehaviour • But this doctrine is not laid dovvn iinn^rsally, as extending to all the rights of f ' subjects. True it is, that they may have a vaictyol ndits so indefeasible, and yet as to other r 8l. s may be ,n a different predicament. And in- ntt're'T'f "h " "T""''' ''"^' '' "'-' «°™"", name of the thing, be subject to many nualifica- cr,:hicb'r?",r"- ^''•■•'"^"^^ c". ; » more ' ' P'''''™"^' ''"« °<='^^«'<'" to state mo e at arge, expressly declared so from the bench It 1 " '!'"'«'■ '" '"'' "»' controvert ™h; J^laeUone has laid do,vn, yet that manv .listinc- .ons arise out of that general proposition." O of SCer"""" ""'^' "" ""^ -- "f -mmerci:f vbich he would he intitled to in that capacity by lestdence ,„ a foreign country. ,f GreltBUal and ,V„„,, an /^V"/'""". who inhabited either of those countries, yvould be liable to have h sDro the natural born subjects of the country. l',s Bw «"/< allegiance v.ould afford him no prot' cuon toJ I ■I 4^ IE i!S, or rather, to the same 'sidence, or le (jiiestion. not tenable, ts may lose Jisione (Vol. lutve a va- beiiig born ever forfeit Illy by their is not laid le lights of may have a as to other And, in- st from the y qualifica- nibr^, in a >n to state the bench, )veit what ly distinc- One of ammercial very right, pacity by it Britain Bn France either of his pro- mweh a» His Jiri- on. 'J'his ¥ COURT OF VICE-ADMIRALTY. principle does not rest only upon the Prize Courts, and the law of nations, but it is recognised by the common law. In the case of Tables v. Bemlelack* an American born, married, and occupying a house at Liverpool, purchased an American vessel, docu- mented as such, he insured and warranted the ship American property. But l^ord Kenyan held, that the warranty was not complied with, and said that " whether the ship be intitled to American privileges does not depend merely upon the owner being an American born. Persons residing in this country, reaping the advantages of the trade of this country, and contributing to the well being of this country, must^or the purpose of trade be considered as belongs ing to this country" This indeed was a case, as between neutral coun- tries, and .:.e powers at war, and depended chiefly upon the law of nations, but there is another case, in which the same principle was applied between Great Britain and her own subjects, and with re- ference to British laws only. I mean that of Mac Connel against Hector (in Bosanquet and Puller's Reports, Vol. III. 113.; The question related to the validity of a commission of bankruptcy, and this depended upon the point, whether the debt upon which the petition issued, was such as could be sued for at law, the petitioning creditors being three partners, of whom one was resident in JEnol land, and the other two being subjects of Great Britain, were resident and concerned in trade, at Flushing, a port belonging to the enemy. It was held that they were not intitled to sue as English subjects in an English Court of justice, and Lord Alvanhj, said, *• every natural born subject has a * Sos. and Pul. Vol. III. 207. n. Espinme. Vol. IV. io«. Ih*"' Schooner Nancy. ^— ■^■™^^""— "-^ iVmch tStli, IBOo, 59 CASES DETERMINED IN THE Murch 13 til, The Schooner r'nr]tt tn *\ t- • •. ""■"• , ."'" " "": ^-'''Bs protection so long as lie entitles •■ • ■ ■ '""'^'-", '" ■' ''y '»» <0"^''"'--' "'-^ "ar, a,.d continue tbe,e 10 tl 'e Ki„'l° '""'' -^^ T" ""' ''""""'• '»'l.ere..ts ini.k ^'"«^„'='f>"es." He says likewise that .hey night be called upon to ,et,n-,. upon piivy seal or proelan.at.o„." It was therelbre ...ere y aXLl f "".'"' r,-"""", 'i/'-V/«,c.,. by resiclnce all « sttd a..d the r.ghts which eorrespo.nled to it plough he was liable to be called ho.ue hy t e K,ngs auth„r.,y, ye, a Brim born subject in v.v! « eo, h,s res.dence alone, without being g„i|,;"f Sle rTht T"" ^^y'""" "' ""' "' "■« »-' va Cou r '""*' "'" "^'""'S '" "'^ King-, i i 1 1 riiK as he entities e lives in an t. The ques- ider the alle- istate, for all sidercd to all as if he were whom France L'rived from a he intitled to would be a igiia/iman re- hject of that is intitled to U while resi- lience in the criminal act. P. C. Vol. I. ing of Eng- lishmcn that utinue there t, adherents se that they rivy seal, or f a disquali- lence alone, sabilities of ce still sub- ided to '\t, me by the jject in vir- g- guilty of le most va- the Kiuji's COURT OF VICE-ADMIRALTY. Such is the eflfect of residence in an enemy's country, and it should seem, upon the same princi- ples, that, by residence in a foreign country, in amity with us, a Jiritish subject must ac(jjiire the s-.im.w disabilities of other inhabitants of that country, especially as by such residence he ac«piires all the privileges of the foreign country. Anl«;cedent to the cases already quoted, was the case of Wilson v. Marryatt, (8 T. It. 45; and Jius. and Pull. Vol. I. 430,) determined. It was there settled, that a Jiri- tish born subject, residing in America, might trade to the East Juilies, notwithstanding the East India Company s charter, and the various acts made in support of it, by which JJrilis/i subjects are totally prohibited from that commerce. In the two cases first quoted, the eminent judges who presided, both assigned the case of Wilson v. Marryatt, as one ground of their decision. Now if the circumstance of a British subject's enjoying the privileges of a foreign country, by residence in a friendly country, was held to be a reason why a British subject, resi- dent in an enemy's country, should participate in th« disqualifications of that country, d fortiori is it a reason why he should share in the dis(iualifications of the friendly country. For in that case it applies only in the way of analogy, in this it is a direct ap- plication. In those cases the situation is only something similar, in this they are identically the same. But the case of Wilson v. Marryatt, goes still further. It determines not only that a British sub- ject may acquire foreign privileges, but that by mere residence abroad, he may become divested of Bri- tish disqualifications. The words of the East India acts are strong, « that no subjects of his Majesty, of what degree or quality soever they be. 59 Tli«' Sclioontr N.ANCV. ,Vuuh VMh, 1U06. I'i |i !l la I: I J: 60 Tiic Schooner ^(A^{;Y. CASES DRTERWINED IN THE March IS Hi shall trade to those i>ai t..." Yet it was hold, that a JJfdis/i .subject, uutmalized in Jmerua, nii-ht le^^aily trade thither. If /inlUi .nl.j,.cts ar(M,ire all the pvm\n>re^ oi Ammcan citizens, they must ac- qnire hkewi.e all |!.e disadvantages of that charac- ter. It nunid be strange indeed, WDriUsii subjects settled in America, shonid obtain all the privileges of y^wmc'«;i subjects, should shake off the disnua- |ifications of a Bnlish charjir-tp,. .p,i yet retain all Its j)rivileges. Such an iucornprohensible accuuiu- hition of rights, M'ould place uon-resident subjects in an infinitely bettor situation than those who con- tinued within the king's dominions. It inus^t act as bounty upon emigration; and as a reward to those who withdraw themselves from the defence Md support of their country. It is but just, that they who quit their country, and fix their habitation ey must ac- l.ut charac- 'n/i subjects e privileges tlic disqna- ■t retain all le ace u lim- it subjects e who con- iiust act as reward to le defence just, that habitation veniences, y have en» law; and eremigra- vs of each 1 upon the principles ?s, and the •pretatiori is nature, ttle coii- e to those 5 in their note two aks of it ' originar msferens, turn, per- . 1. 347, COURT OF VICE-ADMIUALTY. 81 RInrch Uth, fiays, " ncqiw ihrhium qvin mig kids jura amittnt, ac iiieSci.ooncr priviiegia cL iinmuiiihdcti domwidi prioris.' Gaill t adds the reason, ail I a solid one it is. " Propric cum civis uou dU ilur qui oneru civilia, vel civium, nait snstiuet," Whether it was tlie intention of the legislature in this case, to extend the privilege of importation to hrifisii bt)rn subjects resident in foreign states, we uiiist coiisifler the object, and purp(»rt of iheKiatute. And we iniisl not only view it as a single and insu- lated law, but as couneded with a number of other statutes, forming allogelher the ^^yslem of British navigation ami c(;miiierce. 'I'his system is a mono^ poly, and its object is to conane the benefit of the trade of the colonies to the JJritish empire. It is a system m Hie// not unjust, for any country has a perfect right to exclude other nations from its com- merce. It is not iiieijuitable in another respect, inasmuch as it was a policy established amongst all the Europenn nations, before Great Britain had colonies, or laws to regulate them, and is still reci- procally and universally maintained. Jn adopting It, this country was influenced by the soundest prin- ciples of wisdom; and it h )s been justly esteemed as the foundation of our commercial and naval siipe- rioi'ity. It can never have been the intention of the legis- lature, to relax principles so beneficial, more than absolute necessity in certain cases required. When the statute says, " pi vided such articles shall not be imported, exce. by ^r^7^W/ subjects ;" it gives no right to British born subjects, who may be dis- qualified upon other grounds. With respect to such, there must necessarily be a tacit exception. Would It give such privilege to a British subject resident in the enemy's country? Why then does n m'- ^- CASES DETERMINED IN THE Th.^ M,oonrr tlio nct restrain the importation to Jiri/ish subject* ^— ---- at all? It evidently keeps in view the ^eiHTal nns. '' system of confiniiii? all the henefits of colonial trade, within the JJrilisU empire, it is the object of the restrieiin- clause, that the profits and advantages of the colonial tiade may center in the Jiritish domi- nions. IJut if a liiitish born subject resides and carries on his tratlic in a foreign country, the BrilisJi empire derives no advantage from his trade with the colony. The profits all flow to the country of his domicil. The Ihilink empire receives no benelit whatever from his capital, his labour, and his industry. His person neither increaseM the strength of the country, nor can anv part of his property bo compelled to contribute" to its defence. The mere place of birth is perfectly mimaterial; every benefit, which a country can derive from a man as a S!d)ject, depends upon the place of his residence. What ditference in reason 18 there, in all commercial points of view, between a natural born EnglislimHu, and a natural born subject of the Stales, both resident in that country? It will not b(> contended, that the resident subjects . of the BritUi empire, are not able to procure a supply of these articles, for the use of this province, Milhout calling in the aid of those who live abroad! When therefore I see the object of this act may be l>erfectly attained, by the permission given to resi- dent subjects, to import: and that the object of the general system would be entirely defeated, as far as this case goes, by admitting foreign residents, I can- not but be of opinion, that it was the design of the legislature not to extend it to them ; and con- sequently that Messrs. Scott and Tremain, being merchants, residing and carrying on their trade at ISIew York, these goods were not imported according to law. Wi f/< sulijoct* lie j?eiH!ral [)iiiul trade, ject of the k'UMtaj^e.s of ilish (loiiii- 'si(le>; and Ik British trade with e country jcoives no s labonr, increases any part Lite to its perfectly intry can upon the in r« ason ^letween a iral born country? t subjects )rocnre a l)i'ovince, e abroad. ;t may be n to resi- 2ct of the as far as ts, I can- iesign of md con- n, being trade at ccording dOURT OF VICK.ADMIUALTY. djf Munh lajli, 1003. But it is pleach d in justification, that it has TheSciioonrr been usual for the ortircrs of the customs, under — I!l!!I_ the 28th IJco. III. c. (i. and the authority and pro- clamation of the governor, to allow goods of the description named in the said act, owned by British subjects, residing within the States, to be entered by the consignees residing in this province. In the first place, I do not think that the practice is sufficiently proved by the evidence. Some instances indeed, are produced, but these are, in some measure answered by the deposition of Mr. Binney, that the officers of the customs, looked upon the person making the entry as the owner of the goods, and that prior to the appointment of the present collector, no enquiry was made lespectin*' the ownershij), without a special reason. One oi the witnesses, J)nvid Seaiinjr, proves rather too much. He says, that in one case, flour was allowed to be entered, wliicli was known at tlie custom house to have been the property of iin' Amen van subject: now as this was undeniably illegal, such examples prove that the practice at the custom house here, has been extremely irregular. But in the next place, admitting the usage to have been uniform, 1 must hold that the practice of the cu^fom house, even supported by the sanction of the board of commissioners, cannot legalize an illegal act, and cannot form such an autlujiitative interpre- tation of the statutes, as shall be binding upon a court of justice, whieli must decide upon the law itself, and upon the construction of it, according to its own discretion. For this opinion I have the authority of that court, whicii i. most peculiarly conversant with matters of this nature, and has the controul over the customs and revenues. 1 mean the court of exchequer. In the case of Stephani v. Barrow (Anstruther, u CASES DETERMINED IN THR March I3tli, Nancy."" Vol. II. 335), the question was whether Peruvian - bark which had been imported in the gross state pulverized in £»g/aud, and exported, was intitled to a drawback. It was stated tliat the commissi- oners had alloweu tlie drawback as long as oidy small quantities were exported, but that lately it bad become more considerable, and they refused. I he Lord Chief Baron, in pronouncing- sentence, said, that "as to the conduct of the commissioners of tlie customs, it makes no difference the one way or the other; at the different times when their at- tention has been called to this subject, they have thought differently upon it ; when the case but sel- Vhen they arrived, iu consequence ot" directions from DcssuUncs, he [nocteded to .SV. Marcs, and delivered botli cargoes ol" j^nnpowder to DessnUnes, ill part of the fnllihneutof the contract; Windsor and Powell also sold to Ihssnlincs J;J2 disks of pork and tlonr, and obtained ;in order for p:iynient, the gunpowder at 1{ dollars each pound, agreeable to contract. Payment v.as made in coffee, cotton, and sugar, part of which is loaded on board the Happy Couple, with logwood lor dunnage with .t!ie adventures; the remaining articles were to bti 'i^liipfjod on board the Siwipson. Thu adventin-es vere the proceeds of outward adveuiures. That Dessalines was at war x\ itii the French, anil he be- lieves in amity and price with the King ol' Great Briluin, because during the time deponent was at Cionaivcs, His iV[ajest\"s schooner Superior, com- manded by a lieutenant of the na\y, etune into that port for refresh u; on ts,. which v,ere supjilied by permission of Dcssalliy's, asid t!ie couunander of the schooner came on l)(»ard the ISappy Couple, and furnished dej)onent with signals to enable him to distinguish him fiom the French privateers, whicli were cruizing off the Island. And that Des- salines had a sliort time before exehimged a number of anchors with Admiral J) iclavorlh, for small arms, as he hath been inf«i med and believes. He sailed from Si. Marcs 22d February, ujih the ship Alert of Boston, and the schooner West Indian of JNeiv York, and was captured Uth 31arch. liiOi. ;*%' a:',aiiist tW, [ontract to tlu; profits. I- pioporty. I at (lonair *(>irc'l, who s' absence, fli lections idics, and Dessulines, ; Windsor I cnsks of r payment, , agreealjle IV'e, cotton, board the nage with vere to b« idventtires res. That ind lie bo- ;• of Great unent was rior, coni- L^anie into ' (supplied inander of '>tj Couple, nable iiini privateers, that l)es- a nundxr for sfijall eves, lie h the ship Indian of COURT OF VICE-ADMIRALTY. i" ■ For the Captors the Kiiigs Advocate.— This is the simple case of a jieulral ship, that ill her on t ward voyage liad carried an avowed con- traband article to a port in the Island of /V/. Domin- go, a colony of the enemy; and a cjuestion arises, owing to the peculiar slate of that part of the Island to which she was bound, whether or not it call be considered as hostile to the government of Great JJrilain.—TUrit a large portion of that Island has throxMi (^Ifthe yoke of France, and that the port 111 «inestion is included in the number there can be no doubt, but we have no official evidence of its being considered otherwise than hostile on the part of our government.— The insurrection of the negroes may be a temporary event of i^o ])erinanence, and the enemy at this niop:cnt, may be again in pos- session of those parts of the Island, which have been rebelliously wrested from them.— The whole of^SV. Domingo therefore is still to be considered as an enemy's colony, and it would be infringing one of the most important rules of nationallaw", to sutler an article so noxiously contraband as the cargo <>f this ship, to be carried to any port of that colony. Anotinr objection was raised as to the -hips being armed and lilted for purposes of war. Tor the claimants.— 77ril I8tli, iao5. 68 The TIapfv C'OUPLE. Jlpril i8t!i, 1805. CASUS DETERMINED IN THE principle, aij(l it n ,s Ives itself aller aH into an en- quiry o( fuel, whether or not the port in question be hostile to Ills Majesty's govennnent.-- That it is not under the dominion of France must be con- ceded, for it appears to have been completely wrested from the power of ihut country, by the insurrection of the negroes, who are making one common cause with Greal Brilaiu, by a vigorous war against the same enemy. To aid them in this operation is the main object of the voyage, in which the claimants were engaged; the pursuit may therefore be considered rather in the light of affording assistance to an ally, than carrying a contraband article to our enemy.---lt is contended however, on the part of the captors, that His Majesty's govermuent has adopted no measures, that can justify or countenance the inference con- tended for on the part of the claimants; but is the neutral bound upon any principle of national law, to wait for such measure, when iheJacL upon which his right exists, is clearly ascertained, and not even disputed? the port in question is not mfact the port of the enemy, nor by any construction of law can it be so considertid, tor though it be a part ofthe enemy's colony, the pc.ple who are now iu possession of it, and wiio held the possession of it, at the time the ship was i.oond to their assistance, were in hostile array against the uovernment of that very colon n.-IS'o other evidence, therefore, ran in reason be required, in determining the mind of a neutral individual in this instance, than the actual state of the belligerent country, with th« concerns of which for his own interest, he has ^ right and thinks tit to intermeddle. A contrary doctrine might lead to much intricacy, confusion ,^nd injustice.-As to the objection arisiiiif ^Vo.w M f$ into aij en- II question t.-- 1 hat it 1st he coh- LOiiipletely 17, by the akinij one 1 vigorous laiii object 3 engaged; i rather in allv, than ny. — It is itor,«, that measures, ence con- but is the ional law^ |Jon which and not lot xwfact ruction of be a part •e now in ision of it, ssit^anct-, nnient of therefore, the mind than the ^vith thti he has ^ contrajy L'onfusioa ills; ^VoW COURT OF VICE-ADMIPtALTV. tJic hostile equipment of the ship, tliat fact could not be construed into a breach of neutrality, the avowed object (jf such equipment being for protec- tion a,^ain^t the crnisers of our enemy; but at all events, the arniii.isent in itself is not unlawful, as may be inferred frou) the oases of the Maria, Paul- sen, and Elsahc'. .}ui)(ijiiiNT.— Dr. Croke. The principal facts in this case are indisputed. Thoy seem to be staterl with sufficient accuracy in the master's affidavit; from which I shall read them. (Here the. Judife read t lie Master's examination.) In this history of the transaction two circum- stances appear, which nmst properly have engaged "the attiMition of his majesty's cruisers, and are n'ow the subjects for the consideration of this court, the armament, and the natnrc of the outward cargo. A vessel is found upon the high seas, belonging to a nation professing itself to be at peace with alUhe Avorlfl, and in amity wirh Great Britain, armed and oomnletely equipped for war, the captain assuming the < naracter, and performing the duties of a com- modore, having other armed vessels under his con- voy, with a regidar system of signals and martial discipline. To carry arms for self-defence, and the protection of person and profjcrty, under certain restrictions and limitations, is, imdoubtedly, one of the most sacred and imprescriptible rights x)( mankind; Avhether considered as individuals under the law of nature, or in their collective capacities, as members of established govermiiehts, under the law of nations. That such armaments in themselves, and without re- ference to the particular purpose for which they may •Ikj intended, are not unlawful, is a principle which JK 69 The (•nupi,E. Ajn-il 18th, 1805. 70 Tlie Happy Couple. jipril 18th, CASES DETERMINED IN THE implied and recoc^Miscd in the cases of the lUnria, ^ Paulsen, and the tJ/sabc, hy their hein- sent Corfurther proof; as iias beeii [.ropuly observed l>v the counsel for the claimants. iNor do I iLh:k h oimudi conse- quence whether these vessels uere armed hv public . or only pnvate, authority. That is rather a nuestioii between the Jfmericau government and its owr. members; as far as foreign nations are concerned Av.thout^ a disavowal on the part of the ffovernn.ent ot (he Lmicd SuUes, a permission either express or tacit, must be presumed; because no subject can be supposed to uel so openly iii violation of the laws ol bis own country. The only question ihvu is, the purport and object of such arming-, and, whether it be such as is con- sistent with the duties of neutralitv; which must be ascertained from the evidence in the case. The first document to which one would naturally have recourse upon tlds head, is, the master's in- structions (No. 2.) They are general, " if vou ^^honld meet with cw,/ armed vessel." They all )w search according to the most usual mode of exer- ciNiiig that rig])t, by receiving an officer on board; but they order resistance in case the cruiser insists upon their hoisting; out tlieir own boat. In these instructions the owners are settin<>- up -i new law of nations, and prescribing to cruisers a restriction in their mode of search, which they have no right to do. Cruisers, no doubt, may examine vessels as vvell by ordering persons to come on board their own ship, as by sendii.g their own officers; or, Jn any other reasonable manner, under the respon- sibility of costs and damages, if they abuse their right. I have no scruple in saying, that, if these instructions had been acted upon, or if it had ap- peared that they were designed against BnlM E the JSfaria, t forlurtlier tlie counsel lucli coiise- J by public, ' a question tl its own concerned^ ^overunicnt exj)r(.'ss or nbject can ofthe laws and object 1 a8 is Gon- dii must be 1 naturally master's in- , " if you I ley all )vv le of exer- oi) board; iser insists ■tting- uj) a ernisers a they have ) examine ;on board ficers; or, le respon- 'use their t, if these t had ap- i Brilhli 'Vf COURT OF VICK-ADiMiiiALTV. 71 m ground of cruisers, that I should have hehi tl c.inliscation. 1 a.,ree uii'i the doctrine laid down by 8ir Wiiimm i-co/l, in the li/una, Paulsen, that the delivery and acrtptanceof such instructions, and the sailing under tluni, are sn/licient to complete the act of hostility, unless there is some abandon- ment of them. liut the question is, a;;ainst whom these instruc- tions were directed. If, as the master alleges, they weje intended to be ap])lied only against French trnisers, and not against British vessels, 1 cannot hold them to be ground of confiscation in this Court. We have nothin;:^ to do with the abstract or general duties of neutral nations; we are not sitting here in the spirit of pure Quixotism, to redress the wrongs of all the world ; we have to decide only whether the subjects of any country have been guilty of a breach of their neutrality to Great Britain. There is nnich to support the master's explana- tion of these instructions. The depredations com- mitted by the French upon American commerce are noto.rioi! -. In the last war, when American [vessels were captured by the French, the same salvage was allowed upon re-capture, as in the case of recovery from an enemy. The general apprehension oi French cruisers was greatly increased in the present case, from tho object of the voyage, which was to supi)ly the enemies of France with ammunition, and the seas roinid St. Domingo swarmed with cruisers belonging (o the llepublic. The master swears they were armed expressly for their protection against these French cruisers, and for no other purpose whatever. Mackay, tlie mate, contirnis this account, and adds, that he knew they would have allowed any British vessel of inferior force to board them, as they considered them as The Happy COUPI.E. AprW ifjtJi, P :i ^ V I'i the Happt Couple. 1805. Cases DEtkitMiNMo \^ 'nii: friends. TI.e oll.er wifuess tells ilu- sa.iie s(or«- Amon^nsttho letters <,,, hoarcl JlHMlanovr a.Ml nu.nl.rv Ot /,-,«,,./i privateers is a pro.niiM „t feature in iIm3 ^•eater part of the difli-rmt eorre.s,M,n(N.nre. In i^o. J>, Ks an aeeoMut tl.at the \iesl Indum had heen taken and ranson.ed l,y a l^rcndi privateer, and It IS accoinpanic.l will, tlu. pnm-, mrbal, an.I ransom-hdi. The conduct of the master, as it ap- pears n, the iop;-|,ook, was confurniahle to his dc- darations. T„rk\s Jsluud, a /i.//^sA colonv. uas iippdlnted ns the general rendezvous, and they factually touched there in their oufuard voyage All the evidence then, poiulin- one way, a.n'l (Inre not ben.- a single circun.stanee on the other sid.^ to excite even suspicion that this annan.ent x>as di- rected a<,^.n,st linU.U cruisers, hound, as I am to decKle according to tin. evidence bclWrc n.e. I cannot hold the arnnng ot the.e vessels, m U.eiJ, to adoni t'ause for condenn.ation. J[«aym//..//Mbratterall, its legality must o«„-,^; tinder the present government. For if it is to ho constdered as a colony of Frc»>oe, thrs clmL, k [JO iiiid hiiini)(n' lltlllV ill th\; idnice. Ill iiuliuu li:i(I // privjitter, evrbal, and I", as it ap- to Iti.s d(;- t>l()iiy, \uis uiid llicy voyaiiti. ^and (fjrio lirr isi<((j to lit uas (li- HS I a'HI t.) '<•, \ raiiiint i\ to adoiil S must df^. it is coiii- c oil tu aid the usual ontra(,'t Xq Uoniin<''o *. ]ii tlie rter-casks 'or wliii'li, id, no less iiipowder noxious, fiiiist de- Oomingo, is to be rt ha« a COURT OF VICE- ADMIRALTY. • jiixfc rule for its drrision in liis majesty's instructions of (he -J-ith of./////^, WAr.t, whicji allows of a trade l)( Iwrcn ncntial comitries, ;ind the eneniv's colonies, Mi!h llic express e.\eeptioii of si>eli vesse'ls as shall he siipplyin-, or shall on IIk; oiitward voyaj^e have siippli< (I them vvithiirlieles eontrahaiid of war. That ».V/. Domuti^o was a ecdoiiy of France there can he no doiiht. It helooi-vd ori-^inally to Spuin; but the Mestein part of it \Mts ceded to France by the treaty of lii/saicic ill Mrll. |}y the treaty of Jianle in I7J).'), ill,? rest of it was .surrendered to Hie French Kepid)lie. [n laoi a written eonstitiition was formed for that island, under tlse authority of Touliisant, in which the soverei;;nty of France was acknowletlj;ed expressly. Uj) to this period then, ul Icasl, it con- tinued to be a French colony; and it remains to be proved at what time, or by what means, it has -ceased to be so. Trne it is, that an insurrection of the slaves has taken place, and that, after a series of barbarities, disgHacefnl and shocking- to huma« nature, they have succeeded in driving out the f>rnier proprietors, and have made themselves masters 6f the greater part of the country. But might does not constitute right-; and if /'m//ce' has a just title to the dominion of St. Doniino-o, no acts done by re- volting negroes can divest it. Without entering into the (piestion between the mother country and Iier colony, with which we have nothing to do, as far as thiifl nations are concerned, the claim of France to this Island as her colony, must be allowed suffi- cient to impress that character upon it. France has certainly never acknowledged the in- dependence of St. Domingo. Expeditions to re- cover the possession of it have only been suspended by the present war; and the activity of the French cruisers from Guadaloupe to prevent supplies from 7^ Tlie Happy CoL'pr,E, Ai>rU iBIh, lUOA m ■ i M; 74 The Hahpv Couple. April iHlh, m H t; CASES I3I^TnilML\i;i) IN Till; l»ein.- cotmyci] to Ucssalhes, ul.if |i appears in llii>. case, prove that the reduction olthe place is Mill in the contemplation of the rnncli uovernnient. Nor has ihe in.lopcn.lenre of *S'/. iXomingo been aoknowletjoed by ihc nriUsh empire, in any decla- ration, triatv, or oilier [xiblic act. 'iVne it is, that tlun-uh, generally sjjcaking-, one nation has no ri-ht to intcrCere in dome^stic disputes between the dim'reut parts of an extended empire; yet, as is adinitte«l hwlaUd, and other writers upon public law, when matters come to extremities, a nation may interfere and take part ^ith either side, according to what it supposes to be the justice of the case; and therefore (rreul Britain would be jus- tiiied, and mi-ht even plead the example of rmnce Itself, in supporting- the revolted colony of St. Do- mingo against the mother country. But no such alliance is proved:— No treaty to that efjbct is in exislence-no public declaration- no general instructions or orders to his majesty's cruisers, or to the Courts of Admiralty. There being then no puhiic evidence of an alliaurr of which this Court would be bound ex ofjieio to take notice; is it proved hy^^ny prU^atc evidence \u this particuJar case? The master deposes, that Dessalincs is at war with the French; and he believes in aini(y and peace with isreat Britain, because a Britisk schooner was sup. plied with refreshments in the prut o^Gonaives-, and because he was informed and believes, that Dessu- hnes, a short time before, had exchanged a number of anchors with Admiral Duckworth for small-arms. He states, likewise, that he was informed by the in- terpreter and Aid-de-Camp of Dessalines, that he had received a letter from the British naval com- iflfeuder, informing him, that he had sent three frigate ^ ..V. II r; •pears in thi<: ace is hUll iti iitient. ominqo been n iiiiy (lecla- )cukiiis", one stir evidence in at war witli fieace with or was sup. mves; and hat Dessa- \ a number niall-aims. 1 by the in- Sy that he laval com- ree fj-jgates COURT OF VlfE-ADAflRALTV. to blockade the ci(v oi'St. V-unhign, and io ( o-ope- rat«! in the rednclic -i of th»t Jorlress. The whole of tli( s( depo.sitions amoonts to nothing niori! thai! mere beliiif, hearsays, reports, and sup[)o- sitions. That J.:csif /a 'e^A ^i J> > ■ % °% ^IS. /A 7 ''// Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14S80 (716)872-4503 8 The Mapwt Couple. 'April 18th U05. CASfeS DETEIiMINEO IN TIIS that this vessel carried out j^iinpowtler to Ji largfe amount, of which thie present cargo is in part the return, I feel myself bound to decide, that it is a caso which comes under the exception in his majes- ty's proclamation, and consequently is liable to con- fiscation. Such is the jud-ment which this Court thinks it mcumbent upon itseK to pronounce, under the evi- Jdence before it. And i conceive such sentence to he the readiest way of enabling the claimants to avad themselves of any circumstances in thei\' favour, Which possibly may exist, though net, hither- to, satisfactorily proved in this Court. I see insu- t>erab1e difficulties in their obtaining, bv any othei- mode, such proof of any alliance betvveen Great Brttam and St. Domingo, as would be necessary to support their case; by an appeal, the whole b.isi^ Tiess wdl be bronght before the Priv^ Council, com- prehendmg of course, his majesty's nnnisters, who are mformed from their own direct and immediate Ivnowledge, of what relations of amity may subsist between those two countries. Note. Upon appeal the sentence in this case was affirmed, 17th Marc/i, 1808, when the court of ap, peal decided that nothing had been declared or done by the British government that could authorize a Bntis/i tribunal to consider this island generally, or parts of it, (notwithstanding a power hostile to' France, had established itself within it) as beino- t)ther than stiH a colony, or parts of a colony, of the enemy: the trade to St. Domingo was placed upon •a new footiYig by the orders in council of the 19th of November, 1806, the llth oi Febnianj, 1807, and the 15th of July, 1807. After these orders, such ports of that island as were not in possession of the «nemy were considered as not withm the principle I' . '■ ler to a largfe is ill part the ?, that it is a in his majesr- liable to coii- COURT OF VICE.ADMIRALTY. of the Happy Couple. See Edwards's Keports, Tol. I. page 1. The Manilla, Barret, It HAKPf Coi'PLE. Jpr{l lUth, fr^ nnt thinks it nder the evi- 1 sentence to claimants to es in theiV 1 not, hither- I see insM- 3y any othei* ween Great necessary to whole biisi- oimcil, com- nisters, who I immediate may subsist lis case was oiirt of ap- iechurd or <1 authorize I generally, r hostile to as being lony, of the laced upon the 19th of 1807, ami ders, such sion of the e principle The Success, Samuel Day, Master. JiJay 90tb, J805. A SCIIOONEllfroni Gundaloupe to Baltimore, contraband "f^ on a return voyage, taken by the Driver, J. outicon^s. Nairne. Siie was claimed by S. Day, for William JValm and Lewis Ilollingsivorth apd Son, of Phih^ deipliia, as owners of the ship, and of 97 hogsheads, 5 tierces, and 42 barrels of sugar, 8 barrels of cof- fee, aijd 4 boxes qf castor oil. fhe claim state^ that she S9,iled thfi 19th of December, 1804, for Gna- dalovpe, with 10 cables, unwrought iron, 14 rolls of sheet lead, leather, flour, and nails, the property of >S'. Clurhson, of Philadelphia, merchdut, to whojn she >vas chartered. The cargo was delivered to lioberf ffollingsworth, to whom it was consigned. Th? master believes the return cargo to be the property (}f Hollingsworth. In his examination, the master Reposed that the vessel had been upder the manage^- jnent of William Walm^ with respect to her employ- Aient in trade. That there wa§ a charter-party, but .the consignee, Robert Hollingsworth, nephew ojf Levi Hollingsworth, l^roke the chart«t : I do not know that I have any busi- ness to enquire into the ownership. For this trade being permitted only on express conditions, those conditions having been broken, the whole trade to the enemy's colonv, ns fur as this voy.i.^e is con- cerned, beronjes unlawful in itself, by whonjsoever carried on. It is a mistake in the claimant's coun- sel to argue it as a case of simple contraband. The cases upon thai point do not apply to this. And, secondly: There is no proof whatever, as to the ownership of the contraband. It is not men- tioned in any of the ship's papers, the vessel indeed was chartered to another person, but the charterr party, and the instructions to the master, were de- stroyed by the consignee at Guadaloupe. There has likewise been a fraudulent concealment of the contraband. There ore false clearances, and mani- fests, in which they are omitted. The bill of lading is likewise false, not only by the same omission, but by inserting other goods which were not on board. ^s the contraband, which did not appear in the par pers, occupied a large part of the vessel, these sup- posititious goods were inserted into the papers, in lieu of the contraband, to prevent any suspicion from the vessel appearing to have a very short cargo. In the bill of lading, the master is stated as the consignee, though it is evident that the owners brother at Guadaloupe was tlie real consignee. All the parties engaged iji the concern must have been cognisant of the fraud and parties in it. This vessel having carried contraband to a French colony, under such aggravating circumstances of fraud, and false papers, I have no hesitation in con- demning both ship and cargo. The separate adventures to be restored upon pro- per claims being given, provided the property can lie proved. n The •Success. May 20th, 1U05. Id CASUS DETJ!:RMINED in THJJ July 17 th, 1805. Blockade or Curaeoa. Fact Of. Excuses jnsuflicirnt. i ' The Schooner, Elizabeth, Garret Benneri^ Judgment— Dr. Croke. ^HE case, ^s staged by tlie master, is that of i^ vessel bound from Saint Thomas s io Luguira, from thence to Curaeoa, and to New York. It is alledged by the captor.s, that the blockade of Cwn/- coa has been broken. The supercargo in his claim denies that any blockade of that port existed at the tmie vyhen the vessel entered tiiat pprt, or departed from it, and the parties are at issue upon that fact. The claimant's statfi of the case is contained in the examination of the niaster. lie says, " that the yessel sailed from the island of .Vam^ Thomas upon the 3d of April, for Laguira, where he arrived upon the 10th of April. He was there j)ermitted neither to enter, nor to take water. He left it the same after- noon for Curaeoa, as ho received a letter from the shore, informing him that the blockade of that place >vas raised. He arrived at Curaeoa on the 11th of April, when he w^s commanded to land his flour, ^nd other provisions, and then thought it best to dispose of all his cargo, and to purchase the present, which he accordingly did, and sailed in Ma^ for J^ew Yorh; upon which voyj^ge he was captured by the Leauderr To the second additional interroga- tory he answers, "that he knew that Curaeoa had been under blockude, but he understood at Laguira that It was raised. He got in about sun down, saw one ship oft- the harbour, which he tpok to be a man of war, but he did not perceive her till he was just gomg m, that she was standing off", and did not at- tempt to speak the schooner, and he was told that it was an English frigate, commanded by Captain Murrayr The mate deposes « that there .^as a COURT OF VICE-ADMIRALTV. 81 Elizabeth. July I7tb, charter-party for 600 dollars freight to Laguira, but The schooner a proportionable allowance was to be made, if the ''"""•^"" voyage was altered, or e-tended." To the second additional interrogatory, he swears " that they only went in for a supply of water." Amongst the pa- pers IS a protest of the master, made at Curacoa, stating that " he entered that port on account of being short of provisions.'* Now the whole of the correspondence found on board this vessel, and the res! of the evidence, most clearly prove the existence of the blockade, at the time this vessel went in, when she came out, and during her continuance there. The master admits that he saw Captain Murraif off the port. In the log-book of the Volunteer, which has been invoked with other papers from that vessel, it is expressly stated, that the Volunteer was near being t?ken in entering the port of Laguira by an English frigate, on the 12th of Jpril, the very day on which this schooner entered the same port. And this vessel's entering the port safely may be accounted for by what the master says, that "he got in at sun down," probably when it began to be somewhat dark, or allowing a little latitude to the expression, if the truth had been fully divulged, when it was quite night. There are letters dated in April, which have such passages as these in them. One says " there has been no commerce this long while, and there is a great deal of wretchedness." " The English con- tinue to visit us, though only with one frigate, and ft schooner, the greatest risques attend our commerce." In 31ai/, other letters say, « the blockade is now continued so strictly, that it is almost impossible for a vessel to escape, iti or out." Again, " there is so close a blockade, that vessels cannot escape." The place cannot hold out if they continue this block 8S TUe Schooner Elizabeth. July 1 lU, 1805. CASES DETERMINED IN THE ade." Another speaks of " the descent of the £n- glisA," and says, "the Elizabeth, the Volunteer, and other vessels! are still detained by the watchfulness of Commodore Murrai/, although it is expected that the lateness of the moon will enable them to get out in two or three days." How the schooner made her escape is no^ stated, or at what hour she sailed. The fact of the existence of this blockade being established, the excuses set up for the breach of it, are too slender to aflbrd a j ustification. The parties must have known the situation of Laguira, and that the vessel could not have been permitted to enter there, before she sailed from St. Thomas's, from the vicinity of the two places, and the nsual course of trade; yet the destination was originally to that place, without any alternative in the ship's papers. ThB charter-party does not appear. It was very convenient to hold out an ostensible desti- nation to Laguira, to enquire there if it was safe to go to Curacoa. The letter which the master states himself to have received off that port, to inform him «iat the blockade was raised, is not produced. There is great reason therefore to believe, as the pretended place of destination was not open to them, that the voyage was really to Curacoa from the commencement. The loose information re- ceived at Laguira, that the blockade was raised, can afford no lawful excuse, as has been long since decided. The excuse of the want of water and provisions, is not proved, and would not be sufficient if It were. The master does not mention it. The cargo consisted in part of flour and provisions. The mate's evidence is contradictory, he says, " they should not have gone in on any account, if they had not been credibly informed that the blockade was taken off." This is inconsistent with a plea ojf I : I ! !■ of the jEti- lunieer, and atclifulness pected tiiat 1 to get out M'made her ; sailed. :kade being reach of it, The parties guira, and ermitted to . Thomas's^ i the Dsual s originally 1 the ship's ippear. It sible desti- IS safe to go star states inform him produced, ve, as the ►t open to racoa from nation re- vas raised, long since water and e sufficient n it. The ions. The ys, " they r they had ;kade was a plea ojf COURT OF VICE-ADMIRALTY. necessity, which could not be very pressing, if it allowed them to go to another port. It is besides, improbable in itself. Without having experienced any delay to exhayst their stores, it is unaccount- able that so little water should have been taken in originally, as to be exhausted in so short a time. The failure of their excuses, shews plainly, that the voyage was premeditated. What is alledged by the master? that he went in merely for water, and had no intention of selling his cargo there, till he was com- manded by the government to land his flour, is not con- firmed by the supercargo, who, without saying any thing of this alledged force, swears that the whole cargo was unloaded, and, that finding the market low, he directed the master to clear out for the Havanna till they altered their minds. I condfimn vessel and cargo. B NcESTRA Sknora Del Carmen, Andres Fernan- dez, Master. 83 The Schooner Elizabeth. July I7tb, 180.5. rjlHIS vessel was captured in the Sentence." Dr. Croke. West Indies. It has been claim- ed, together with the cargo, as the property oi Spa- nish subjects, and therefore, is liable to confiscation ; unless it is protected by a licence, found on board, granted by the Governor of Jamaica. A condemna- tion has, notwithstanding, been prayed on the part of the cap cjs, on several grounds, which I shall .consider in due order. yhe first argument was of a sweeping uature, and g2 Dec. iitii, 1805. 1 The importa- tion of goods under the free- port acts, not there specified does net con> iiscate the res* sel, and other \ goods allowed 1 by th« act. 84 CASES DETERMINED IN THE Tlie NUEITHA Me- NURA \)t:L Cahmen. Dec. nth, 1805. r I! S H f its object was entirely to throw the licence out of tlje case. It was said, that, as it Mas granted in favour of a vestfcl, of which Jose Domingo Orena, was described as master, it co^fld not apply to this vessel, which is commanded by another person. But this is an objeciion of no weight whatever. The li- cence is granted, not to the master, but to the owners, this name is introduced merely by way of description at the time of granting it, it is mere sur- plussage, and a change of master can no more viti- ate the instrument, than it would bills of lading, a letler of marque, or other document where his name appears. The identity of the vessel is proved, by the bill of sale, and a Spanish passport, on which the names, and the changes of the masters are indorsed, and where it appears that Orena was in that capa- city when the vessel was at Jamaica, and that con- formably to the account given by the master, he was left sick at Porto Bella, when the owner himself, the present master, took the command. As little validity is there in the next objection, that this vessel having gone first to Triixillo, and from thence to Porto Bello, for the purpose of trading, was carrying on a commerce between two Spanish ports, and therefore could receive no pro- tection from a licence to trade between Jamaica and the colonies— and this would undoubtedly be true, if the trade had been independent of the purpose of the licence, but the licence is not confined to any one Spanish port, the words are general, and even in the plural number, " colonies," and it cannot be said to be a departure from it, to touch at different ports, for the very purpose of carrying it into effect. The cargo from Jamaica, was disposed of at TruX' illo, and the vessel then m ent in ballast to Port(^ Bello, to take in her return cargo. COURT OF VICR-AOMIRALTY. It has been argiiOil, «. lltli, 1HQ5. CASES DETERMINED IN THE case the situation is not decisive either way. She was indeetl out of iier direct course for Kingston, yet had not deviated beyond what the force of winds and currents might have NORA Del Carmen. Dte. lltfa, 1805. Tlie Nt:KST«A Se- DORA Dei, Carmen. CASES DETERMINED IN THE Due. II til, 1803. incurred at Jamaica, I apprehend this Court has no power to inforce them ; not by one branch of its ju- . risdjction, though extending to the place where the offence was committed, because the suhject matter IS nut withm its cognizance; not by tiie ol/ier branch, which has cognizance of the subject matter, on account of its locahty. 2d. To consider the case, iiulependently of the acts of parliament; it has been argued that the licence is conditional, and that the importance of commodities not expressly menticaied, is a breach of the condition, that consequently the licence is entirely annulled, and the whole is liable to forfei- ture as enemy's property unprotected by licence. It IS necessary to see upon what ground these licences rest. The general permission to trade be- tween the Spa?iis/i colonies, and the free ports, as I have before observed, is granted by the statutes above quoted. Though the words are very general, and without limitation, I appreliend that the state of war intervening between Spain and Great Britain, would suspend their effect. His majesty therefore,' with whom it rests to relax the rigid rules of war, before hostilities, and as early as September 1803, issued his instructions to his commanders, " not to' seize Spanish vessels trading to the free ports, pro- Tided in case of hostilities, such vessels should be required to have a licence from the governor." After war was declared, instructions were sent to the governors, authorising them to grant licences both to British and Spanish vessels, under which power the present licence was issued by governor Nugent. These licences then being founded upon the free- port acts, for the proper construction of them we must look to the purport and intention of the legis- lature there expressed. Now it is evident that the ^ourt has no COURT OF VICE-ADMIRALTY. framers of that act did not consider the importation of non-enumerated articles as a breach of the con- dition, and a forfeiture of the licence itself, because they have imposed a specific penalty for such ille- gal importation, which would m that case have been unnecessary; and it must be observed, that the penalty so enacted is less than what would take place if such importation was a breach of the condi- tion, and annulled the licence. The statute confis- cates the non-enumerated goods, and the ship, but does not extend to the articles enumerated, which it should seem would not be forfeited, with the pro- hibited goods. If such importation were a breach of condition, and destroyed the licence, the whole would be unprotected, and would be confiscable; in peace under the navigation acts, and in war like- wise, as enemy's property. I am sorry the industry of the gentlemen at the bar has not been able to discover any case upon these licences granted to subjects of tiie enemy, nor am I a wave that any such exist. Cases, indeed, there are many, of licences to British subjects to trade with the enemy, which seem to have pretty well settled the law upon that head, and it is very material to the present cause to ascertain how far ihey are applicable to licences of this species, in. those cases it was held, as past all dispute, that the importation of non-enumerated goods was no breach of the condition, for though the illegal commodities were condemned, the vessel, and the lawful part of the cargoes were restored by consent. I cannot think that any little variation in their forms, with with which by the by, we are not here much ac- quainted, can make any material diflference between the two cases. Wherever there is an enumeration of articles, it must be understood to be exclusive 91 The NUESTKA SE« NORA Del Carmen. »■ ■ Dec. nth, 1B05. ■ i : m : 93 The Ndgstka Se NoifA Pel, Carmen. CASES DETERMINED IN THE Dec, nth, 1805. 'ivhether there are any words of exception, or not ; and though these exceptions may be expressed in something of a conditional manner, they must be understood with reference to the original act of par- liament, upon which they are founded, and of which the hcences are merely the execution, and as we have already seen the legislature in those acts did not hold such importation to be a breach of the con- dition. It is an inviolable maxim of the law of nations, that all engagements with the cncmv should be observed with the greatest good faith and liberality. 1 know of no mode by which this maxim can more properly be carried into execution, than by adopt- ing towards them the same rule of construction which is applied to similar grants of privileges to our own subjects; at least, to use a harsher construc- tion, would scarcely be consistent with good faith, and liberality. If this be true generally, it seems more particu- larly reasonable in these cases, in which subjects and enemies, seem to stand precisely in the same situa- tion; both with licences, and without them. A sub- ject who trades with the enemy without a licence, is considered as acting in a character hostile to his own country. It is aiding and abetting the enemy, and doubts have formerly been entertained whether it did not amount to a species of treason. Even at present it niay be observed, that property seized in that traffic is condemned as prize, that is, as enemy's property. On the other hand, by a licence to the enemy, the hostile character is completely suspended, as far as the licence extends, and the grantee becomes pro hac vice a neutral, and even entitled as in such case where he is admitted to partake of a monopo^ lized trade, to the privileges of a British subject, COURT OF VICE-ADMIRALTY. OS Those cases of licences to British subjects were decided principally with a view to the municipal law; transactions with the subjects of the enemy, are fgoverned by the law of nations, the only law which is equally binding upon both parties. Let us see what principles have been laid down upon this head by eminent writers in that species of jurispru- dence. Grotius, and it is impossible to quote a higher, or more venerable authority, is remarkably clear and explicit upon this point. Jus commeandi est privilegium neque tertio noxium, neque danti ad- modum grave; ideo intra verhorum pmprietatem laxa magis quam stricla interpretatio admittenda est, eoque magis si non petenti datur benejicimn, sed ultro obla- turn sit; multoque magis, si ultra privatam puhlica quodam ulilitas in negocio vertatur. Rejicienda ergo striata interpretatio, etiam quam ferunt verba, nisi alioqui absurdum aliquodsequereter. (Lib. IIL c. 21. § 14.) that is, a safe-conduct, of which these licences are a species, is a privilege neither injurious to a third party, nor burdensome to the grantor; provided therefore it be within the proper meaning of the words, an extended, rather than a5/r«cf interpretation is to be admitted ; and the more, if the privilege is spontaneously offered, and not at the instance of the grantee, and with still stronger reason, if besides the benefit to the parties, it is for the public good. A strict interpretation is therefore to be rejected, even if the words will bear it, unless an absurdity would follow. Now it must be remarked that this case compre- hends all those circumstances which this great man lays down as the strongest grounds for a most ex- tended ioit'rpretation— for the privilege of trading to the free-p - is spontaneously offered by the British governmeut to ail who choose to apply for it, and The NvestraSb* NURA Del Carmen. Dec. 1 1tb, 180S. m The NUESTHA Se NORA Del Cakmen. CASES DETERMINED IN THE r Dec. nth, 1805. ! ft : i ! ' besides the benefit to the parties, it is a species of traflic encouraged solely for the advantage of his - majesty's dominions. In the case of British licences under the munici- pal law, it is held that licences being high acts of sovereignty are necessarily stricti juris {Cosmopolite, Mathieson, Rob. IV.) But, nevertheless, the impor- tation of non-enumerated goods is decided not to be a breach of the condition. If then, under that law. by which licences are of strict interpretation, it is no breach of the condition, how can it possibly be held to be so under the law of nations, which points out a most extended and liberal mode of interpreta- tion ? There is another consideration which arises in this particular case. The master swears that he knew that copper was permitted to be imported into Jamaica. Now, whatever may be the case with British subjects who are bound to be acquainted with the laws of their own country, with regard to foreigners, who are under no such obligation, though a permission con- trary to law cannot protect the illegal goods them- selves from forfeiture, yet it would be a hardship bor- dering upon injustice, to extend the confiscation to ship and innocent articles, in a case which is with- out the reach of the penalties inforced by the statutes, and where the party himself had good reason to believe that he was doing a lawful act. and especially when the condemnation prayed for would be an extension of the penalties even beyond what IS inflicted by the statutes, under which Cocoa, th^ licensed part of the cargo, would not be subject to condemnation. Having already condemned the copper and the tm, I feel myself now therefore under the necessity It, i COURT OF VICE.ADMIRALTY. i«} of decreeing the restitution of the vessel, and such parts of the cargo as are specified in the licence. The NUF.STII* Se- Kon* T);l Carsikn. Dec. liUi, The Fame. Instance Court. ^T^HIS was an American vessel from Boston, with a -■- cargo of rum and other articles, to barter with the vessels fishing upon the Labrador coast, to receive fish in return, and to proceed with it to Europe, and was seized in a remote and uninhabited creek in this province. It was said on the part of the prose- cution that this was not fishing under the American treaty, but trading with fishing vessels. That it was not only a breach of that treaty, but impolitic for this country to admit, as it destroyed our trade on the fishing banks. It was not argued that there was any intention of actually importing in the gut of Causo, where the vessel was found at anchor, but that she put in there with an intention of doing further what was an illegal act. An opinion from Reeves ou shipping was quoted, in which Sir George Treby had said. " that though a mere involuntary import- ing by distress of weather is not an importation under a prohibiting act, (for though not excepted by express words yet it is in equity,) but this excep- tion is not be extended to cases, where there is a mala fides and a positive intent to break the law, for that takes away all title to such favour and equity." That though by the American treaty the subjects of the United States might fish upon the coast, bays, and creeks, of £ill ^is majesty's dominions in America^ AOR. 1, 1806. American vessels may supply tiie fifiir iog vessels witi^ necessaries, aud enter iin uninhabited port in the conrseof siic|p trading under the America^ treaty. M The Famb. Aug, igt, 1806. CASES DETERMINED IN THE they were not permitted to trade there. On the other hand it was agreed, that if the Americans may fish, and may even dry their fish, upon unsettled parts of the coast, they may send ships to supply their fishing vessels with necessaries. That the in- tention of importing into Nova Scotia was clearly negatived, and there is no restriction in the treaty, or otherwise, which can prevent them from sending ships to supply their own fishing vessels, or from sending vessels to pnchase the produce of the fishery, to send on to market in Europe^ Restored with costs. 1 !i Sep. 19th, 1806. l^fcpers con- cealed, and fraud detected. The Venus, Reuben Alletu Taken hy the Bermuda, Captain Byain. npHE ship was claimed for Eliphat Loud, and -■- others, and the cargo for John Carrere of Bal- timore. She was bound from, Baltimore to Bour- deaux, with a cargo of sugar, and other articles. A letter was discovered on board this vessel written in sympathetic ink. On applying the proper com- position the letters became legible, and it was found to be therein stated, that a paper was concealed in the head of a sugar cask. No. 36, under the title of letter /, in which the real state of the property would be found. After a diligent search it was dis- covered, that a hole had been bored in the thickness of a board of the head of the cask, that the paper had been rolled up, put in, and corked. It shewed that the property claimed by Carrere as his Own, w&s HE ;re. On the nericans may on unsettled ps to supply That the in- was clearly II the treaty, roiu sending els, or from f the fishery, Loud, and ''ere of JSal- ^e to BouT' irticles. A ssel written >roper com- t was found 3nc6aled in the title of e property it was dis- e thickness ' paper had bewed that OWD, yi^% COURT OF VICE-ADMIRALTY. French j>io|)erty; it stated various frauds in ac- counts current, and as to the proceeds of cargoes, and it appeared (hut the proceeils of oiie cargo were to be used as the colourable funds for several return cargoes. It spoke likewise of the vigilance of the abominable Court of Ualijux. Upon whi(;h the claimant's counsel abandoned Currem^s claim for Ihe cargo, as being indeftnsible, and admitted that It was liable to confiscation. The captor's counsel consented that the ship should be restored, and the only question was as to freight. It was aNedged on behalf of the owners of the vessel that the master was not privy to the concealment, and that the vessel was only on general frei'dit, without charter-party. The ship with freight, and the master's adventure, restored. Oji appeal, the sentence was affirmed, and the appellant condemned in costs, 20th February, ]809. The information obtained from this secreted let- ter, fiunished evidence for the condemnation of pro- perty in other vessels. The Fkiends AdvexNture, John Marshall. T' 97 The Vejjui. Sept. 9 111, laub. U^IS vessel and cargo were restored, but the owners claimed damages for ill usage upon the capture. They alledged that the Lieutenant who boarded them was intoxicated, that the people in the Bermudas boat fired a volley of musquetry into the schooner, and cut the sails, and that they boarded in a riotous manner, with drawn swords and cutlasses, though they were informed that it was an American vessel. Tire question of dama«-es was reserved till the return of the Bermuda, with Captain Bijam. Sept. Utb, 180(i. Captors not liable to da- ina£;e3 for iiriug attbe rigging of a ship, which seemed pre* paring for lesittauce. H ,1 I 08 Th« Friends Advknturb. Sept. 24th, IDOti. Oct. sot*. 1806. Clearing out to Boston, entering, traUiiig, and clearing out from thence to Halifax, "'as an impor- tation fiom iiviton. CASKS DETERMINED IN THE This question was Iicanl on the 3d of October, upon a number of aiJidavits. it appeared that the mrmmlahad ciiased this vessel the whole day; that when she came up, she sent her boat; that the vessel stood towards the boat, and seemed pre- panng to resist, or to tire, and hoisted no coloin-s. Upon which hostih> appearances the boat fired some volhes at the rigoinjr, and tooic possession. The Court held this to have been no breach of duty, and that the captors were not liable in cost« and damages. Instance Court. The Briif, UMo^^ Judgment.— Dr. Croke. 'J^HE principal question in this case k, whether a part of this cargo was imported into the port of Halifax, from Boston, not being such articles as might be from thence imported under the statutes. J he vessel sailed originally from Trinidad to -Bos- ton, and from thence hither. The cargo consists of sugar and molasses; one part of it,"consisting of Cocoa, was landed at Uosion. It has been argued on behalf of the claimants, that ii is to be consi- dered as one voyage from Trinidad. The parties themselves have decided that question. Upon all the documents it is clear that they understood that the first voyage was completed at JJoston. At Tri- nidad they took out their clearance, and other pa- pers, as being bound to Boston. . A bond was given to land part of the cargo there, which had been I)urchased at Trinidad, for Nicholas and Company, f October, 1 that the hole day; boat; that eined pre- colours, (ired some ion. The of duty, costw aud COURT OF VICE-ADMIRALTY. of Boston, and there to be delivered. They ac- cord iiif,dy went to Jioston, entered tlie vessel regu- larly, ami trailed there. At sailing, they cleared out from thence, aud gave bond to carry the cargo to Nova Scotia. This constituted altogether, a new voyage from Boston. 'J'he bringing of this cargo ft'om that port, was an iuiportation contrary to the statute, and 1 therefore condemn both ship and cargo. 90 The Brif, Union. Oct SOth, whether ) the port rticles as statutes. f to Bos- ansists of sisting of n argued be consi- e parties Upon all ;ood that At Tri- )ther pa- as given lad been umpany. The Threk Brothers, Daniel Fitch, Master. Judgment.™ Dr. Croke. May 9Ui, 1807. HE vessel and cargo are both claimed for John Purthcr proof Carrere, of Baltimore. The voyage was from tol drnlt. Baltimore to Bourdeaux, and she was taken upon Sujoflraud the return with wine, brandy, and other soods. The «"•' P'O'iry in r /• ii . o '^ • •-■»"' a receut case. proof oi the property in the ship is complete, and of the national character of Carrere, who has been re- sident in the United States for twenty years, and I therefore decree restitution. The evidence, as to the ownership of the cargo, is very deficient. There are no orders from Car- rere; the master can only swear that he believes it to be his property, because he saw a great many goods in Ducornau's store at Bourdeaux having Carrerc's mark upon them. It is a case for farther proof, but the captors have invoked papers from a case lately tried here, the schooner Venus, Allen, upon which they argue, that such a mass of fraud and perjury has been there delected, that Carrere is entirely discredited, and not intitled to bring fur- ther evidence, which he has shewn himself so capa- tle of falsifying. h2 100 Tlie Til H KB BlSOTHKIlS. Mill/ 9tii, 1807. CASES DBTfillMINED IN THK That case is so recent, that it is scHicely necrs- ^ary to state the pu.ticiihiis. Jt nmy houever he sh(,rtly ohs^Mved, that Curnre swore fully to the pioptMly as heiijjr his own. Yet in the concealed JHter, It a,,p(-are(l to be the property of Frenchmen, and he dneets his correspondent, the eonsi-nee of the outward, and the shipper of this ,,resent cargo, ill Irei-htui- a vessel, to send him by her au ac count of the sale of goods. To inhance the prices ot the sale, that the reii.ittances may appear io be the returns of goods, and to n.ake all the p.pers tally. Alter the discovery of these plans of decep. tion, accompanied with the n.ost palpabl. perjury, and which «eeni to extend to this very case, I am of opm.on, that Mr. Carrere is not intitled to the privilege of further proof. I condemn the cargo. iV.jB. This sentence was affirmed on appeal Nov. 30th, 1800. * . ' l'807. Traf'< .irciic'f. Or •lh of iMarcU he saih>d for Lwer- pool in liiio-lund, but mectinji: with gales of wind, on the 4th oiL April, he was compelled to make the lirst port in America, and was endeavouring; to ^vi into the Chesapeake, when he was captured within three miles of tW/>e Ilearij. Judgment.— Dr. Crake. This vessel was captured upon a voyage from St. JJammf>o. which is held to be an enemy's colo- ny. It is a trade which is made lawful for a JJri^ tish subject 6/K. IUU7. 102 The IJrig, Ci.vnE. May 93{}, 1807. CASES DETERMINED IN THE Gazette at Barhadoes, that licences would be granted - at Tortota to trade to iTnyti. T!iat in consequence this vessel uas sent to Torlola to obtain a iicen e. The owner, Miciuwl Cuvav, went on shore there, and applied to the j)resident ot the island, but he was informed that no licences had been received from England'^ he was told likewise, that although licences were not to be had, there was no risqne of interruption by British cruisers, as the brig fJar- moni/, of Bermuda, which had been detained by the Alexmidria, on a voyage from Auxcoyes, had been sent to Tortola, and by a decree of the Court of Vice - Admiralty restored, and the captors con- demned in costs. That at St. Domingo, there were a number of British vessels. That this vessel had on board a minute of the order in council. Upon these circumstances it has been contended, that the parties having done all in tliei:- power to obtain a licence, ought not to be deprived of the benelit of His Majesty's gracious permission to carry on this commercial intercourse, from the neglect, or igno- rance of his officers. They were entitled to a li- cence, and the president at Tortola, without any necessity of waiting for further instructions from England, was empowered, and ought to have granted one. They might very reasonably have presumed, that from having on board a copy of the order in council, and from the infonnatiou which they had received at Torloia, that the voyage nnght have been lawfully made, and as the parties had actually gone to that island, and had applied for a licence, there was no fraudulent intention of evading the law. If these statements were correctly true, this woul4 certainly be a case in which the parties would be entitled to every favour and indulgence, which it, te granted iseqnence a licen e. ore there, d, hut ho I received although risque of )rig Uar- ed by the had been Court of :ors con- lere were ssel had I. Upon , that the obtain a )encfit of y on this , or igno- to a li- hout any MIS from ?{;rai!ted •est lined, order in Liiey had ;ht have aclnally Mcence, ling the is woul^ ould be kvhich it; COURT OF VICE-ADMIRALTV. would be in the power of the Court to shew them. But I fear that it wouhl, nevertheless, be iin|)Ossible to extend any etjuitable reUef to them, even if this case was perfectly free from any suspicion of want of good faith. The order in council requires that the licences shall be under the hands and seals of the governors, or presidents respectively, in his Ma-- jesty's name. This Court can substitute nothing in the place of a formal instrument so executed. What- ever may be the merit of the parties, the order is jmsitive, and cannot be dispensed with. But this is not the whole objection, there are other conditions annexed in the order in council, in which the parties liave failed, and which would be suflicient to invalidate the most regular licence. The order requires Ihat the vessel should clear out from the port of Road Harbour, in the Island of Tortola, or from the free ports in the Buliama Islands. Now, it is evident, that the vessel did not enter the port at Tortola, or clear out from thence. No clearance, or other port papers, of that island, are on board, and the log states, that they only " stood oft" and on." It is another requisite, that the cargo should be of the produce or manufacture of the united king- dom. The dry goods are said to have been of that description, but it does not appear that the fish, and the provisions were British produce and manufac- ture, and certainly the specie, of which a large sum was on board, could not be so considered. The na- ture of the outward cargo formed a very material object in the contemplation of his Majesty's govern- ment, in permitting this trade, and the conditions in this respect must be literally observed. The order also directs, that the articles of the produce of St. Domingo shall be brought back from 108 The Brig, Clyde. Mny '.'3tl, 1807, lOi Tl.c Briff, C.'.YKE. CASES DETERMINED IN THE i8or. (hence " to the free ports in the JJa/uum Islands, ortothepo,tof««rf//„,io,„- ortosome port of the united kn,gdo,n." Jf, indeed, this vessel h.-I.I been taken ni go;ng lo Lwrr/m,/. (!,e order so far wcdd have been comph-ed uith, l„„ she «,-,,s in fact enter- -ns i he Cics„j,c«kc, and there is verv good reason to behev,, that it was the original .lestinalion. The necessity t,>r pntting- i,„„ the U„iM St,Ues is not proved. On qnittins ,/.«/,„,„,,, ,|,e vess, I .sailed to the west, went roun.l Cape Donna Man,,, and St. cametn' "Tr^'T'' "'"■"■,"'-'• '-f'- '1- s.orn, came on. Ihe sinps articles .stale .he voyage to Wk l'';, '? "'"' ^"""'"- '*''"■•'• I'^l""- ""» kept back by the master upon his exa.ninalion, aiid was not then speciii.d as heii,g ainongst the pape.s. It ^vas p,.od„eed five d.ays af.erwa,-ds, and'th'e words trnat Bntam,- appealed to have been interlined alter the words " No,U .l,„e.;car in a hand .litfe rent f,-o,n that of the rest of the inslrunient, in a fainter ,nk, and lately written. When we add to these c„x„inslances, that the vessel sailed fi-„,„ Jia/J,m„re to JiarMoes the beginning of the pie- the master was silent respecting it, ;vhen he save an account of what (bruier voyages the ves. sel had been engaged in, there arises a very sH-on ■■ presumption that Liverpool .a. not the real des f- nation, as was held out i„ ,|,e ship's papeis, bnt 1 e aesapeakc, to which she was actually going Barto"f,h '"T'f' "':'■"■"'' ''»""S'-»i'«l in everv pa, t of their defence, I conden.n this vessel and caigo as havmgbeen taken in trading with the enemy and nnproteeted by his Majesty's licence. ^' -t-Ki COURT OF VICE-ADMIRALTY. 105 The Walker, Clarlc. June 34tb, 1807. lonmng tlieir ordinary duty. nr^HTS American ship was naptiired by a French \fc'h^.'\^^' -■- privateer, whilst on a vova^e from London, to cvew, &c. -\T \r I I <■ 1*111 King's ship not £sew York, ana aflerwarrls rescued by the master, intitled to sai- passengers, and others, who rose upon the prize -^ '^^- '^^-"■' crew, and re-possestted themselves of the vessel. Soon after this event, they fell in with His Majesty's ship Crocudtie, the comniaiider of Avhich ship took possession of the IVaiker, and brought lier to Halifax. Several claims were given for salvage, and among the number, one on behalf of the captain and crew of the Crocodile. On the purl oj the Crocodile, the King's Advocate contended — That notwithstanding the master and passengers w ere in possession of the Walker, at the time she fell in with the Crocodile, and although they had overcome the prize crew, and secured them for a short time, they had it not in their power to have continued their possession. That if the Crocodile had not appeared in sight, an attempt would have been soon made on the part of the prize crew, to recover the ship ; and that the master, conscious of this fact, Mas desirous of availing him- self of the protection of the Crocodile, though he was now contending against her claim for salvage. The Solicitor General and Haliburton, contra. — The claim, on behalf of the Crocodile, has no merit whatever for its support. The Walker was in the complete possession of the original master, and no reasonable fears entertained of a rescue on the part of the prize crew, as those who had gained the pos- session, it appears, were well inclined, and well able to retain it The assistance afforded bv the Cro- 103 Tlir ^Vai iiru. CASKS nnrEnMiNnn nv tiii!; rorfi/c upon Ml.id. the clai.u for salva..c rc..t«, in una of a uu'io convoy prot.^clion. |t is hiif (lio I.nsoncrs urn, removed n-on, tin.. n'n/An; Uut lUnt vv.ts noUuno- ,noro than a,, art of ,lnly on tluMunt of the Con.n.an(I,>r of iho Crorodiie; and with ro ^^:m to ,he few nn-n Ihat M'..v sent (Von, that ship to the Ha//ar, th.-y ueie of no nse either in tho na- V'.^at.on or ,,rotccti.,n of the vessel, indee,! ono of he passc.,o;ers has ussc rt.d in his (hposilion, ,hat .OMMnen were srnl in H.. phu-e of h.tt.r .ean.en. vUio had he<"n pressed fron, the ir.,//ar. The Cro codilc, there/ore can be tuititlfe(J to no s dvagv. Skntknce.— Dr. Crokc The monition in this case, and tho alle^vation. are as ma pn/e canse, I'here is a claim of EberCUirke, the "laster tor the ship, on behalf of AVM lim.d and •altot y^^Wand Sons, and varions other persons, ';>•• the ear^o, who are all named in the bills ,h ship and ca^^•o to those po'sons. I he Con.t has only to decide npon seve- ra clanns for salvage. There is a petition of Cor- ^^cUns UaiJM, Jisq. an balf-pay Captain in his i^'a.Msty s service, and Rkluwd and James Spin/cs, ^lilmj; thenjselvcs yeome.i, and IJritis/i s.dyects as re-captors A petitio.i of Lawrcucc llarlshorue ami J wmas lioo-^,, agents for the Crocodile, on behalf ol .1.0 othcers and crew of that ship, as rc-captors liUw.se. home ailulavits are annexed to the claim and the petitions, and seven examinations l.avebee.i aken. J he facts will appear principally i„ the mas- 1^*1.0^"";?""' V '^'' «^^'"^i"8•"'ter^o,^.tories, lie there states " that the vessel loaded in iV^ OOUIIT OF V\Ci:..\nMUlAhT!Y. m Yor/c, \u ./(inuuri/ h\st, vii;!i a car/jjo of \v!iriit and flojir, and, ni'tor toiidiiti!; at luilmouth, procjjedud to Ijondon, \\\ioxe she sold her outward cari!,o, and took on l)oarVALK|.:n. JuHf HWi, tao7. 11*2 The Wai.khi. June •iUh, lh07. CASES DETERMINED IN THE I am of opinion, tlirroforo, tlint Ihoiigli the Croco- fh/e lias not made (Hit sucli a case as would intitle iier to .saivayc, yet that lier seivicets have heen siuf- iicient to warrant me in dei.itein^' that lier costs should be paid by the clainjaiit. I" ascertaininj,Mhe salvage due to the other par- tics, I shall adhert! to the established principle of considerinjr lanlv and station, in a|)portioning it, and I decree, on the authority of the Beaver, Conner, (Ftob, III 292) and other cases, one sixth of the value of the si;ip and cargo, of which, one half to be divided equally between the master and Captain Uatfield, the other half to be divided in efjual por- tions between the other four persons, who appear to have effected the business witho.it any help from the others, that is to say, Richard Spinks, and James Spinks, Sniff an, and the mate. t> > It' |i' My, 1807. Certificate of probable cause of seizure must be gianted upon the facts appeanug in tlie cause. Not necessary to prove them to have been known at the tinieof st'i- aure. False papers, pro- Mble cause. Instance Court. .Schooner FaxME, TJPON the 4 Geo. III. c. 15. §. 40, which enacts that •' in case any information shall be com- menced, and brought to trial in America, on account ot any seizure of any ships or goods as forfeited by this, or any other act of parliament relating to His Majesty s customs, wherein a verdict, or sentence, shall be given for the claimants thereof; and it shall appear to the judge or court, before whom the same shall be tried, that there was a probable cause of seizure, the judge or court before whom the same shall be tried, shall certify on the record, or other proceedings, that there was a probable cause for the prosecutors seizing the said ship or goods ; and in COURT OF VICE-ADMIIULTY. such ciiso the lU'ftndant sliall not be intitled to any costs of suit whatever; nor shall the persons who seized he liahle to any action or snit on acconnt of snch seizure," See SuUivau against 31o)Uugue Douglaa, 102. Sentence.— Dr. Croke. This is a question upon the admissibility of cer- tain affidavits offered to the Court upon a motion to obtain a certificate of probable cause of seizure, upon the act of the 4th of Geo. III. c. 15. §. 40. The Court, no doubt, will not debar parties from making such affidavits if they think proper, as a foundation for their application, and of course will permit them to be read. J:;ut in forming its judgment upon the propriety of grarjting a certificate, the Court can take into its consideration, no fresh tacts, nothing more t!ian what appeared upon the trial of the cause. What is the certificate ? That in a certain cause, tried before the Court, there appeared probable cause of seizure. How can the Court so certify, when it did not then appear in the cause itself? Every word in the act refers to the trial of the cause. It is directed to be certified on the record, or other proceedings. To what else then can it bear relation, but what is tlier^i contained, the pleadings in the causf, or the evidence brought in support of Tlieui ? It is to be given only where a cause is brought to trial; a verdict, or sentence, must be given, and it can be granted only by the jud^-e or court before whom it is to be tried. To admit fresh facts, would be in reality to begin a new cause. It is admitted that the other party should have an op- portunity to answer them. To what length such proceedings might go it is impossible to say. lis Tlie Fame. July, 18U7. 114 The Fame. July 1B07. CASES DETERMINED IN THE The costs fonn a very nuUoiial part of every cause, sotneHines the most material, and are conse- quently a very essential and integral featiire in the decree of the court. The tirst effect of the certi- licate is, that the (iefendant in the orij-inal action shall not he intitled to any costs of suit whatever. It is equivalent therefore to a decree of the court to that pur|)ort. Now it would be the height of absurdity to suppose that the court could decree against the defendant's receiving costs, which he would regularly be intitled to in consequence of the judj^nientin his favour, upon the ground of a pro- bable cause of seizure on the part of the plaintiff, when no such probable cause wa,^ proved in the course of the suit itself, to which the question of costs referred, but were merely brought forward after the cause had been decided. The next effect is to be a bar to actions, that is, to deprive parties of a legal remedy if they conceive themselves injured. The facts therefore should have been fully proved in the course of the cause, not merely rest upon subsequent affidavits. They should be as perfectly established by evidence as any other part of the <;asc. It was objected that seizing officers might be deprived of tho henetit of this act Irom having omitted to plea,! and prove tacts, which though they would shew a juRtiliuMc cause of seizure, they had not thought material, or relevant to their case, and therefore had not introduced thtm iu the cause. It is difficult, 1 think, to concdve any circum- stances which could amount to a probable cause of seizure, without being likewise evidence tending to prove the offence for which the vessel was libelled. Were they otherwise, I can see no impropriety in alledging, or proving, what would afiect the costs iu the suit. COURT OF VICE-ADMIRALTY, 1 shall coijsi(Jer ihi.s application, thereforr, npon the original ovidciire imrt'ly, without attending to those adirlavirs. The prosecutors having failed in Hupportiiig their all. gation, and it even being ad- mitted, that there were no facts to prove an impor- tation, the only offence which has been charged, costs followed of course. The art i)f parliament intervenes in favour of oificers, and ♦»nacts, that if the court shall certify that there was a probable excuse of seizure, th*? defendant shall be intitled to no costs, and the sei- zers shall not be liable to any action. The grounds upon which the court ought to grant a certificate, 1 apprehend to be where the proof is doubtful, though not sufficient to establish the facts, or where nice points of law may arise, or where certain other circum- stances appear in the case to afford good reasons ior suspicion, not of a vague and loose nature, but such suspidon as is just and reasonable. It is not necessary that there should be proof tl)at the cir- cumstances were known at the moment of actual seizure. It is enough if they are proved afterwards. JBecause it may be difficidt to ascertain by direct evidence upon what ground or information, the officer may have proceeded; and secondly, it would be a bounty upon fraud, if parties by concealment could j>revent officers from the benelit of the act. i think them intitled therefore to the i>enelit of all cir- cumstances which may appear, although it should not be |)roved that the officers were cognizant of them at the time of seizure. When a vessel conies within th« dominions of another state, it has a right to be satisfied that its laws are not broken, and it is the duty of officers to make enquiry False papers are a breach of good /aith. If such are discovered, it throws a just sus- 12 115 F4Mf. July 1107. 116 Tlie IFame. July, 1807. CASES DETERMINED IN THE picion upon the vessel, and all her concerns. V^o dependance can be placed upon the otiier papers, or the master's accounts. Wherever false papers are found they certaiidy supply a jiistitiable ground for seizing a vessel and instituting a suit against her for further examination. In this case 26 casks of rum were concealed. Neither the clearance, nor any other papers con- tained them. Jt is an article calculated for an ille- gal importation. I am of opinion therefore, that there was a justifiable ground for seizure, and de- cree the certificate. Dec. 16th, 1807. The United States, 3Ioor. ^^^^^n mm 1 ^^Mm-i- ^^^^St'^ ' ^^^^^^B * ..4 . H^^^H i c!.' .umK:? T^f f ''^'''''' """' ^ '^'y ^^'"^^'^ cargo, were ^rouldT^"' h '7' " ^^ *'^^ Leopard, Captain Humphreys,- cimieiunation. J"^ -i riumpA, Sir T/ioiiias Hardy, and the Colum- bine. Captain Brudshaw, being in sight. Three pomts were stated by counsel, on which the cap- tors expected condemnation. 1st. That there was strong suspicion that the cargo was not wholly owned as claimed. 2dly. That part of the outward cargo was contra- band. 3dly. That the vessel had been trading between two ports of the enemy. Judgment.— Dr. Croke. If (he second point, which has been argued by the captors, is established, it will not be necessary to enter mto the others. The vessel sailed in De- ccmhev, ill Iii06, with a cargo of earthenware, pi-o- i J * E :eriis. f^o ler papers, paj)ei's are ground for against her concealed, apers con- Por an ille- efore, that !, and osited with the offending subject, and the parties must be caught in the fact before they can be convicted of tlie crime. As a common prin- ciple, it has however, been established in the case of the Nancy, Kundson,* and recognised in «)ther cases, that "in distant voyages to the East Jndies, the different parts are not to be considered as two voyajies but as one entire transaction, formed upon one original plan, conducted by the same persons, and under one set of instructions, ab ovo usque acl mala, and therefore in cases of contraband, especially when there is any thing of fi and, or concealment, the return voyage is to be deemed connected with the outward." If this is admitted as a general principle, in this pe- culiar species of trade, itis ma(iean indispensable con- dition in His Majesty's order in council, by which it is allowed, [n virtue of the rights of war, one enemy may seize and confiscate property engaged in commerce with the colonies of his adversary. 117 Uniied States. Dec. liith, i8or. rare, pix)- * Rob. Ill, 120. i- 118 The United States. JDec. I6t!i, 1807. CASES DETERMINED IN THE For the benefit of neutral nations;, His Majesty by his (.rder in council of (he :>^th of June \im, di- rected « the coinmunders of hi.^ ships, i. )t to seize neutral vessels ^^hich shoi.id be cairyin- en Hade dn-ectiy between the colonies of the eiieniy, and the neutral country to which the vessel belon-s, laden with the property of inhabitants of such neutral country. Provided that such nentral vessU shall not be supplyino^, nor shall have in the ouluard toy^ age supplied the enemy with any articles contraband oj war." If this vessel therefore, carried ont any contra- band articles upon her outward vovage, she is in- disputably subject to confiscation. It appears from her papers, that there were 3G5 bars ot flat Russia iron. This article is adnntted abstractedly considered, to be of all others the most ambiguous in its nature, and of the n,ost universal application, of a!l the su!>jrcts of commerce it Mas ,n its unn.annfactured state, and wa. capable IherehMv of being, applied to the most innocent, as ^vell as t..e unst no:.mn.s purposes. The nature of the iron, its peculiar litness for naval purposes and the usual occupuiion of the port to which it was carried out, are the criteria upon which its cha- racter as contraband depends. To ascei tain whether It IS a kmd of i.on which is usually supplied to dock yards, and is particularly useful in the con- struction and repair of vessels ; J directed a refe- rence to the proper officers of His iMajesty's dock yard and they have made their return upon oath. Affidavits likewise, by leave of the Court, have been brought in from several highly respectable officers 01 n.s Majesty's military and naval service, v/ho • have served in the East Indies, and who, trom a personal knowledge of the islands of France, and I' * COURT OF VICE-ADMIRALTY. 119 ajcsitv by IH03, (U- cii irade , atid tlie m's, laden I neutial sd shail arff toi/- nlruLund ! contra- lie is in- ere 365 dinitted the most niversal rce. It capable cent, as atnre of irposes, hid) it its cha- vhether >lied to he con- a refe- s dock n oath, e been officers 3, v/ho from a •e, and Bourbon, have been enabled to ii^ive a satisfactory history and description of tiieni, as far as has been required. it is fnlly proved, by these, that the Tsles of France and Bourbon, are posts of naval equipment, and the only naval and military station which the T'lCHch hold in the seas to the eastward of the Cape of (moocI Ijiope; that they have always a strons; na- val and niilitary force there stationed ; that these are tiie only places where they can repair or fit out ships of war ; that they are the rendez- vous of all their naval forces, both national, and private ; that the naval expeditions made from these islands, have been highly injurious and de- structive to tlie trade of Great Britain, both in the last and present wars ; that the national and private ships of war, which cruize in those seas, would be unable to continue their depredations on the British commerce in that part of the world, was it not for the outfits and supplies which they there receive : that the naval and military establishment which t'le French have made at the Isle of France, is considered by that nation as the first and princi- pal objects for which those islands are held, and supported; an'i that by mean of such establishments alone, they ompel Great Britain at all times to keep a powerful naval force in those seas. Besides the general part of these affidavits, there are particular statements of vessels which had been so fitted out and repaired within the knowledge of the deponents, such as the Triton, and the Princess lioyal, indiamen, which had been captured from the British, and had been fitted out tliere as ships of war, and the Marengo, and other vessels of Ad- miral JLinois squadron, which had been repaired there after an engagement. The^se affidavits, from officers of rank, who have not only had the means, Thi- United States. Dec. iiHii, 1807, III t\ 120 Tire U^ ITTD .Statfeo botli th in flat p'ates, and in bars, f )r niakini»: holts and chains, ko. and each in their public situations are in the h.-'bit of using- such fjuaniities of Unasia and other flat bar iron for the above purposes. With this, is an afiidavit of Mr. J)a?vcs the storekeejjer, of the same yard, who deposes " tliat i,.^ occasion- ally, and at stated periods, when it is wanted, de- mands from the honorable navy board flat bar iron for the purposes of naval eqnijiment, and upon notes or demands made by the master shipwrigiit, issues the said article for naval equipments accord- ingly." It is clear therefore, that this iron, > well adapted to naval purposes, and going to such a port, ni;;stbe considered as decidedly contraband. Theie is another article, concerning which there can be no hesitation. John Hill, the steward of the vessel, deposes upon the seventh interrogatory " tiiat they landed at the isle of France tar in barrels, that the cargo consisted of flour, tar, and iron, that they used one of the barrels of tar in the ship and rigging, kept another for the sliip's use, and the remainder they left on shore at the Isle of France. He cannot swear to the exact number of barrels, but he is positive there were as many as twelve barrels and upwards of that article" It has been said that the quantity was very small, and the rule of law has been quoted, de minimis nan curat lex. But every little quantity coiitributcs something to the Tlie States. Dlc. 16 lb, i8U7. m 1S2 CASES DETERMINED IJV THE The United Ktatks. Dec. Kill), 1807. conveniences and uses of the enemy. It is only Mith such small supplies that vessels con ven- ture to e/igage in trade, and if every vessel brings what taken separately, might he consiie. laws of Great Britain. I am sorry to iind that f-^"'" tlu re slionlil be any persons, ulio, horn i;^iioian(o or disaft'ection, are diisposed to treat those hnvs with disrespect J and oin^nces committed against Iheni with levity. A little reflection wonid shew that they ought to be considered in a mneit more important point of view. The high superiority of the naval force of Great Ihitahi, to which, in these times of extraordinary danger, we look for safety, is founded upon those regulations. Jn the com- mon crimes, which are the subject of enquiry iu courts of justice, beyond the disturbance of the peace, a few individuals only are the sufferers ; but offences against the navigation laws, and protectiou and encouragement afford ed to offenders, tend to M'eaken and destroy a system to which millions, all the subjects of the British dominions, are indebted, for the security of their lives, their property, and their liberty. ** In your case, as it stood upon the first seizure, 1 believe there were iavorable circumstances under which you would have obtained an acquittal of the vessel aud cargo. But, instead of waiting for the decision of the court, you took the law into your own hands, broke open the store where the sails were deposited, and carried off the vessel and cargo by force— this is a crime of the most heinous nature- it is a contempt of the greatest magnitude against the Court of Admiralty, and of your sovereign, from whom this and all other courts of justice derive their authority. It leads to the destruction of all law and order in society, and to the revival of that state of violence and anarchy, which it was the object of all civil institutions to remedy. " There is a circumstance stated in your petition, which whatever effect it may have upon the humanity I II' Hi 128 I'Nncii Si\t NWoun'f Case, D.i. '.Mil. Ib07. CASUS DETEIIMLNED JN TIIK of Jlio court, or of the prosecutors, J cjuinot hut con- siiler UN an a-gravation, rather timii an cxtoiuiation, of }onr om-iico-y.Mi plead tliat you l.ave a wife and six tliildren hrou-rit into a slate of distress hy your misconduct. Persons in that situation oui;ht to be doul)ly cautious how far they connnit crimes for which the innocent, who are under their peculiar care and protection, may eventually become sutlereis. " Taking however, into consideration the dis- tressed state of your family, and yotir being utterly incapable of makitig any pecuniary compensation to those who are injured by your conduct ; the impri- sonment you have already undergone— the great sorrow and repentance you cx()ress for your offence, and your solemn promise in future to demean your- self as a good i.nd peaceable subject; and since his Majesty's oificers have declared that they liave no wish or intention to carry on the prosecution farther against you, I am disposed upon this your petition to extend the mercy of the court towards you, and to decree a supersedeas of the attachment, upon which you will be discluirgeil from custody. " m Jan, S6tli, i8oa. The rights and powtTs of Cap- tors and Prize Agents, over captiirrr and proceeds, be- fore final sen- tence, coasi- .einc,Mhe proceeds of the ship Uerkimn ■a\m\ cargo; an ""<' --SO- He says ""f'"f "^*'"y«'« ««rf .«fe- It was actually car- ried n.t« effect : for the respondent, retaining in his ^24 000, and upwards, as an equivalent for the purchase-money which Griswold was enga-^ed to l-ay, del.v^ered the vessel, and the remai„der''of the cargo to Mr. Gu„o,d. There was indeed a„7gree! "lent, tha m case the former agreement conid not refund the sum of £9,704 10..; but the sale, subject to that sort of contingent defeasance, was neverthe ess actually made and con.pleted as a presen nTnr'fT' ''^' "'"^''^ "' ""^e"""^' «°d 'he pay inent of the price. ^^ The question then, whether this is a legal agree- ■nent, or, m other words, whether the parfies had a rjght to sell the ship and cai^o to the'ctman,, ,,! Ut. Whether captors h^ye ^ disposable propertu m thmgs captured, or the proceed, of them, £ IE 3nt to keep •r proreeds, t'come ope- he captors, istify an in- capture or possession, er quarter, this power, !, and have ed by the 5 intention espondent He says iswold did tnally car- n'ng in his amount of It for the )gaged to der of the an agree- ould not Id should 5, subject neverthe* '■ present the pay- al agree- es had a mants in on these property I, before COURT OF yiCE..\DMIIULTr. 141 final nfljudicatioi, ? And what is the final adjudi- The catKni be 2(ilv. If they have no disposal)! nect'ssary to consiuer wlio e property, it will is eiititlecl to the ens- tod;, or ijusnensiim, of captures an 'rj^H m i^'^^t^l Hsr'«i^H VS-tr^'^^^K IB i-lt-U^^H ■4 M^itjsM^I BikI^I U6 CASES DETERMINED IN THE The Herkimer. Jan. 26tii, 1808. Ill : 1' affected ; nor can any aj^reements between the cap- - tors and claimants enure to the defeating of those interests, which will still have a lien upon those proceeds, to the full amount as they appear upon the records of the Court, according to their respec- tive extent. As to the present interest, nothing can be more certain, than that before Jinal condemmtion the cap- tors have no legal interest ir the capture at all, nothing which they can by any possibility convey to another, either in the name of a compromise, or of any other denomination, and that in case of an appeal, the first sentence is not the final sentence, but the ultimate decision upon the appeal. This is too clear to admit of a doubt. It is a question which has been most accurately examined, and deliberately settled in some of the most solemn decisions, which have ever taken place in the Bri- tish Courts of Justice. Ships and goods, taken as prize, belong to the crown, as the representative of the nation. No subject has any right to them but by express grant from His Majesty. Those grants are subject to any restrictions and limitations, which His Majesty thinks pi oper to make. What is not expressly granted, or comes within any limitations, or restrictions in the grant, is an interest still remain- ing in the crown. The captors title deeds are the King's Proclamation, and the Prize Act. The pro- clamation directs that prizes may be lawfully sold or disposed of by captors and their agents, after the same shall have been to His Majesty finally adjudged laaful prize, and twt otherwise. By the Prize Act, the whole interest and property is given to the cap- tors, expressly ^Ufter the same shall have been ad- judged laivful prize to His Majesty." I^he interest in priae, therefore, before final condemnation, not COURT OF VICE-ADMIRALTY. Jmviiijr been granted to the captors, still remains with fiis Majesty. These are not mere abstract and theoretical doc- trines, nor is the interest of the crown a fiction of law. It is H real disposable interest, and accordin^-jy iti the case of the ElzeU, Maas, (5 Rod.) it was de- cided, " t/mt the crown can reh ase ships and goods that have bee.i taken>tf belli before adjudication, without the consent of the captors." These points were the subject of discussion in the case of Home against Lord Camden. Few cases were ever more frequently and deliberately argued. The action was tirst brought in the Court of Common Pleas, from thence it was removed by appeal to the Court of King's Bench, and finally by wnt of eiror to the House of Lords. It was there refaned to the Twelve Judges, who delivered their unanimous and elaborate opinion by Lord Chief Justice E>/re. (//. Blackstone, U. p. 533.) After recognizing the general doctrine that the interest and property " do not vest until after the same shall have been finally adju.lged lawful prize to his Majesty," Lord Chief Justice Eifre proceeds to state, " that the effect of an appeal is to suspend the foi ce of the sentence. From the moment of the appeal being interposed, the sentence is no longer Jinal; on the contrary, it is liable to be reversed in part or in whole." After arguing this point at length he concludes, « j(,ur Lordships will see how per- fectly mconsistent with the plan of the l»rize Act, this notion of the interest and property vesting in the captors, at any time before the final adjudica- tion in the Court of Appeal, will be found to be, Jn truth, so far from the interest and property vest- ing at an earlier period, the legislature by the words 1.3 147 The Herkimer. *— ""^"••..■■^ Jan. 2(jtli, 1808. us The HlltKIMER. Jan, ,;()th, laoa. (;• CASES DETERMINED IN THE seems to have cautiously guarded against its beins it is taken out of their lian.l.s by the Conrt ; Ufsually in two cases, that q( ddivrry upon hail, and of a sale under a perishable UDuition, upon farther proof, or sentence ami appeal. Even t/ierr upon every sale the proceeds are taken out of the cap- tor's possession and are remitted b, the cvinnn's- sioners to the registrar of the Lou t of Admiralty, to remain t-nrii hiial adjiulicaiion. ^ In th. ('one,,, of Vice- Lfm^alt,/, a djftV.rent mode IS poihlest of either of the parties, order such goods and .ffects to be entered, Janded, COURT OF VICE-ADMIHALTY. ISl and sold by public auction, under tbe care and cus- tody of the proper oflicers of the customs, and under the direction and inspection of tiuch persons as sball be appointed by the claimants and cajjtors." How the proceeds of sale are to be disposed of is the next question. There are two acts which direct the Court upon this head, the one enacts what shall, and the other what shall not, be done. The Prize Act says positively, " that the monies arising from the sale shall be brouj^ht into Court, and by the registrar shall be deposited in the Bank of England, or, (in case the captors and claimants shall agree thereto) in some public security at interest, in the name of the Registrar, and of such trustees as the taptor and claimant shall appoint." The other act, 41st Geo. III. C. 90', which is a perpetual act, and expressly confirmed by the Prize Act, says, " Whereas it is expedient that the proceeds of propel ly caf)tured and converted by sale should be secured until final adjudication; be it enact fd, that in all cases when a commission of ap- praif^meut and sale is granted by the Judge of the Vice-Admiralty Court heiovejinal sentence^ the pro- ceeds of such sale shall not remain in the hands of the captors or their agents^ but shall be brought into the Registry of the Court, and remain subject to the farther orders of the Court until final sen- tence." The cautious, systematic, and well considered re- gulations of the ;ic(s, with the practical interpreta- tion of them by Prize Courts, for the safe custody of thepr(»perty, is very observable. The captured pro- perty itself is either in the custody of the law, or it may be delivered to the parties upon sufficient security ; if sold, the proceeds must be left in the Registry in the actual custody of the Court, or placed in the Tlip HtRKIMER. Jnn, i.6th, 180B. 152 CASES DETERMINED IN THE 1:1 Herki'meh . P"^J'c funds in the name of tlie Registrar, and con- ■3—^- sequcntly still in the protection of the Court; these 1808. are the only alternatives, no power is given to leave the capture in private hands vvith(,ut security given, or the proceeds in any case uhalever. Which of the courses prescribed by the act have been followed in the present case ? The ship and cargo were not delivered to either ot the parties upon bail, because sufficient securities could not be found. Upon the joiht motion of both parties, the other alternative was adopted : it was sold under a com- mission from the Court. An argument was advanced by the King's Advo- cate that - this sale was not made under the authority 01 the I rize Act, or in conformity to the regulations prescribed m it, and that the agent could only have been answerable for the proceeds, if the commission ot sale had been directed to him." If the tiict were as represented, still the conclu- sion would not follow, because, as proceeds of prize. >vhich they are admitted to be, however acquired they are liable to be called in, unless the party can shew a legal title (o retain them. But the proceedings in this respect have been pertectly regular, and coj-farmable to the I'rize Act. It was said by the King's Advocate, that the sale ought to have been made by the prize agent, under the 53d section of the act, which directs that all appraisements and sales shall be made by agents appointed by the tlag officers, &c." This clause has received a judicial interpretation in the case I have so often referred to, Home against Lord Camden, where it is expressly held to relate " to appraisements and sales after final adjudication," COURT OF VICE-ADMIIIALTY. It was tlien said lliat the ship and cargo were not " sold nnder the direction and inspection of such persons as shall be appointed by the claimants and captors," under the r/2d clause. The act does not direct the sale (o be made by such nominees, that by the usual course and practice of the Ad- miralty is done by conunission to the marshal. The parties have a right, if they choose to exert it, that the sale shall be conducted under the dneciion and inspection of such persons as they shall appoint, but if no such persons are appointed, they must be taken to have waved their right ; and since the sale took place iipou a joint motion of the parties, that the property should be sold by the marshal, he may in some measure be considered as their nominee to direct and inspect the sale. The sale then was conducted in the usual man- ner: in virtue of the connnission directed to the marshal, tlie ship and goods were advertised as being to be sold, under the authority of tlie Court of Vice-Admiralty, they were put up to auction by Messrs. Hill, and Co. and were knocked down to the respondent as the highest bidder. lipon this review of the Prize Acts, it appears that as to the rigid of possession, the parties could only acquire the pos^^ession olship and cargo upon bail, or as purchasers. They were not entitled to it upon ^»a^7, as that mode was found impracticable; if they acquired it an purchaser <: they were answer- able for the |)uichase-money, as before stated. And ss to the possession of the proceuds, they are not entitled to it, either as parties, agents, or purchasers, in any case ivhatever, but are bound to pay t.,ein into the registry. Right, then, the parties having none, how can the Court be justified in allowing the respondent to re- m The Heh" er. Jan. !i;6th, ItiOtJ. 154 CA'-'KS DETERMINED IN THE The HRRKIMEn. Jan. 26tb. 1VU8. i ^ tain the proceeds, contrary to the Prize Acts, for tjje purpose of eflicting; an agreement, which in it- self, is substantially illegal, and to support an ange- nients which the parties had no power whatever to !i»iake ? This brings me to the second question, made by counsel. It is farther pleaded in the answer, " that the ca[)tors, and claimants, and the agents of Cap- tain Heresfo^d, are all satisfied with the security they now have, and are willing to allow the pro- perty to remain where it is at present." Not only no power or authority whatever is given to the Court to permit proceeds to lie lodged in private hatuls, but the words of the act are very po- sitive against it; "that the proceeds «/<«// be paid into Court, and ihall ntt remain in the hands of the captors' agent.'' How then can any consent, or acquiescence amongst the parties, set aside a po- sitive direction to the Court? No such ptiwcr is given them by the act itself, but the direct contrary may be inferred from it. Certain things are allowed to be done " in vase cap- tors and ciaimants shall agree " such as, that pro- ceeds may be placed in public security at interest, instead of the bank : in another clause that " pro- perty, with the consent of captors and claimants, may be sent to England iov n'Ae:' Hut if captors and claimants, by their joint consent, could dispose of proceeds in a different manner irom what the Prize Acts direct, tliese clauses, empowering them to make a particular disposition in cer'ain cases, would be totally nugatory. The introduction of these clauses, is therefore complete proof; that, in the opinion of the legislature, claimants and rap- tors, by their joint consent, can make no disposition COURT Of VIGE-AOMIRALTY. of captures proceetls, other tliau such as the Prize Acts have dirtcterl. 80 with respect to drljvery upon bail. There is no point u|)on which it :shoiihJ seem that parties nii^-ht he more saftly trnsted to aj-ree, thaa upon the stifticjencv of the seeurilies. Yet here the com- pelence nf the hail is not hit to the mere ac<|nies- ceiiee an«i satisfacti' 11 of the parties. A warrant is always directed to the marshal, to enquire into, and report ihe sufficiency (►f ilie security proposed. How then can it he contended that the consent of parties can justify the Court in leaving this properly with- out any seciuily at all ? How little latitude is given by the acts to par- ties >?wceeda.g nze Act ition for stands / of the ire hiin u|joii a COUHT OF VICE-ADMIRALTY. right footing. He is debtor not to the parties, but to the Court ; since the property was in the legal custody of the Court, and the sale made by its offi- cers. The Court must look to the security of the property ; I can have no doubt of the respondent's competency— he has sworn that " he has property sufficient to pay the whole sum." But that is not the question—the Court must proceed upon genei-al prinriples. It is not asked, whether A. B. or C. are responsible men, but whether the Court, with- out authority and without security, can justiliably leave property to an immense extent in an^ private hands? The opinion of the Commissioners of Naval Enquiry, in tlieir fourth report, to the House of Commons, was very decided upon this head; they strongly reprobated it as an abuse that agents should have the use of the proceeds of prize ia cases of appeal. " It sets," they observe, " his interest at variance with his duty. The property is in many instances too great to be trusted to an individual, especially if that individual be engaged in trade • and most of the prize agents abroad arc merchants: they are tempted to speculate upon it; and we find that some of the most considerable among them have failed at different periods for very large sums. The principal Agency house in Jamaica, which is said to have been concerned in nine- tenths of the captures carried into that island during the last war, amounting in value to about £2, 143,000 sterling, has been very lately under pecuniary embarrassments," p. 2ti2, Under such an authority can the Court be blamed for using some little caution ? No power whatever is given to the Court to leave proceeds in the hands of purchasers, or agents; in case of the failure of those purchasers or agents, as no security 159 The Hfhkimer, JuK. 26th, 160 The Herkinfr, Jun. 26 th, 1808. CASES DETERMINED IN THE is given, wljere is the Court to look for tlie pro- - perty ? And what is to «liield the Court and its officers froni the imputation of a neglect of duty? Not the acts of parliament, for they would have been guilty oUaches in not enforcing them, not an agreement between the parties, which, as respecting the pro- ceeds, are illegal, and void. The Court must look to possibilities; individuals may exercise a discre- tion, and may run risqnes, but a public body, acting as a trustee for the public, njust go upon certain- ties. It would be wanting in its duty to itself, if it did not reduce these proceeds into its own pos- session, and to the crown, in whom the present legal interest vests, and for the protection of which the Court is bound to interfere. ii± The manifestly bnzardous situation of the property itself, from other quarters, in addition, would be a stil! stronger impulse upon the Court. A war between Great JBr Jain and (he United States was daily apprehended, this province was threatened with an immediate attack ; allowing every merit to the brave defenders of the country, it was not im- possible that it might be taken by tlie enemy. In that case it was evident that nearly the whole of the prize property in the hands of individuals would be m danger of total loss. In consequence of a requisition from the court, the marshal made a report of the state of prizes. It appeared that upwards of <£ 1 20,000 of the pro- ceeds were in the hands of purchasers, whose time of payment bad expired. It was retained by them too without any security. The court thought it right, that property to i\m immense amount should not be left exjiosed in this dangfeious situation, but that in compliance witli Ihe acts of parliament it should be called in, and COURT OF VICE-ADMIRALTY. 161 invested in the British funds. In so doing it thought The n was exercising a sound discretion for ihe security -"'""'"": of the property entrusted to it, and that it was per- "''"'• '^«*' forming its duty to the King, to the British nation "'"'' and to the officers and men of the squadron upon this station. * Upon these grounds the general order of the 23d of ^^^m^.r was issued, directing all purchasers to pay m their proceeds. Three months elapsed, and bu a small part was brought into the registry. The order of the 29th of December was then made, and monitions directed against defaulters, beginning with the case of the Herkimer, because the proceeds in that case were of far greater amount than in any other, and because it was understood that resist- ance would be made to the order for payment If the order was properly issued, it was necessary to enforce it by farther process. I have hitherto gone on the supposition that the Court iiroceeded ex officio, and have shewn that it had that power, and was fully justified in exerting It, under the present circumstances. But I am more inclined to think that these proceedings were not ex officio. They were founded upon the appli- cation of the parties. The minutes of the Court appear thus in the registrar: " On motion of coun- sel for captors and claimants, stating that difficul- ties had occurred in procuring securities, and pray- iiig the Court to direct a sale of the property, and the proceeds paid into the registry,, and to take the nsmd^ course, the judge decreed a commission of sale. The express application of both the parties, concurred, theiefore, with the regulations of the rrize Act, m imposing an obligation upon the Court to compel the payment of the proceeds. The mo- nition was merely in execution of the commission 162 The HiRKIMEK. CASES DETERMINED IN THE Jm. 26th, 1808.' !■ of sale, and in aid of the marshal, who was answer- - able for the proceeds of sale. The Court might indeed have proceeded against the Marshal, and have committed him upon an attachment for not returning the commission with the proceeds, as in the case of the Fortuna, Gerritts, or the Marshal might have prayed a monition against the party. But as the Marshal stated to the Court that he had applied in vain for payment, the Court judged it expedient, and the most expeditious mode of proceeding, to issue a monition directly against the party who was in possession of the proceeds. Little stress was laid upon one argument just stated by the counsel, that the whole cause was now out of this Court on account of the appeal. On this no farther observation need be made, than that these proceedings are what are directed by the act to take place after the appeal entered, and in consequence of the appeal. In considering the protest, and the answer, and in following the arguments of counsel in their full extent, and in every point of view, which for the satisfaction of the parties, and the justification of the Court, I thought it incumbent upon me to do, I have been obliged to take a wide range. To bring the whole to a single point, it is evident then that the respondent's plea,— that though in strictness of law he may be a purchaser, under the Marshal's sale, and responsible for the purchicse- money, yet in justice and equity he ought not to be called upon to pay it, because the truth of the transaction was, that it was a present sale of the ship and cargo by the captors to the claimantg,— is not maintainable ; be- cause the captors had no legal interest, or property in the ship or cargo to dispose of. 2dly, That though after the sale by the marshal, the purchasers had a '4 ■'■'A n i m answer* 1 against upon an lion with GerrittSf 1 against le Court e Court us mode against jeds. ent just ise was appeal, de, thaB :ted by ed, and i'er, and leir full for the ition of to do, I b bring en that tness of irshal's , yet in ipou to IS, that by the le ; bc" roperty though ) had a I COURT OF VICE-ADMIRALTY. right (o disp( se of the ship and cargo in what man- ner they thought proper, the Court is only concerned with the contract of sale, and has nothing to do with the subsequent transactions, which can there- fore afford no plea for the retention of proceeds. 3dly, That the respondent has no right whatever to hold the proceeds as agent for the partie.s because the prize acts give no .Mich power, but expressly di- rect them to be paid into the Registry. 4thly, That the respondent, therefore, stands before the Court only as a purchaser, as a mere stranger in posses- sion of the proceeds of prize, and consequently lia- ble to the farther compulsory process of the Court m case of non-payment.. I conceive too that as any other purchaser, by the law and practice of mer- chants, he is chargeable with interest from the time of payment, which, by the conditions of sale, was fixed at six months. However great may be the interests at stake, the present transaction in itself is a mere trifle, in com- parison to the real question before the Court, which is not merely whether the proceeds of the Herkimer shall be brought into the Registry, but whether the parties, or the Court of Admiralty, have the cus- tody and disposal of captures before final adjudica- tion; whether the powers and authorities of the Court shall be superseded, and the regulations of the legislature evaded and defeated by a combina- tion of parties. The substance of the answer, with the statements of counsel, do indeed afford a most extraordinary kin? of defence. When the purcha- ser is called upon to pay the purchase-money, we are sold, that by some private understandings, un- known to, and unauthorised by the Court, a solemn pt^blic sale made under its authority, by its owa officers, and under the express directions of an act M2 IQ9 The Herkimer. Jan. 26th, 1808. 164 The Herkimer. •fan. 26th, 1808. CASES DETERMINED IN THE of parliament, is a mere fictitious sale, the purcha- sers ideal, and the purchase-mone} returner! in the marshal's account of sales, a non-entity, which no- body is accountable for; and that under colour of that fictitious sale, without any authority from the Court, the parties have taken possession of ship, cargo, and proceeds; the law indeed says that cap- tures shall not be delivered to parties, but upon bail, upon the stipulation of two securities, who must justify, in double the value, besides the re- sponsibility of the party; and that proceeds shall not be retained in any case. By this contrivance of a sale, they have evaded tlie prize act, and have got possession of the capture, without giving any secu- rity whatever, and still claim to hold the proceeds ; and it cannot but occur to the recollection of the Court, that the person who has thus acquired the possession without security, in open Court declared himself unable to justify as one of the securities. Having thus, 1 may say, as against the Courf, and It their plea could be vahd, frauduiently obtained possession, the parties have divided the ship and cargoamongst themselves, without a shadow of right, or power. Such a case loudly calls upon the Court to vindicate its own authority, and that of the laws. It has been alledged, by way of a mitigatory plea, by the respondent, " That he v.ould not have been concerned m the purchase if he had apprehended that it would have been required of him to pay into Court the whole proceeds of the sale of the said ship and cargo, the particular object of the said purchase on the part of the respondent being to enable him to carry into effect the said agreement." . '"''^''^ P" Paities in this case had erred through Ignorance, or from inadvertence, they might justiv COURT OF VICE-ADMIRALTY. be entitled to some indulgence ; but they were per- fectly co-nizunt of the nature of the transaction in which they were engaged. The law Upon the sub- ject has* been frequently stated by this Court. It has had occasion to animadvert upon former irre- gularities, which had taken place with respect to agreements, and divisions of proceeds. In this case, in particular, soon after the condemnation, when It was proposed to take the property upon bail, and when Commodore Beresford gave in his protest against a compromise, the Court, at length, stated the law relating to the rights and powers of par- ties and their agents over captures and proceeds. It stated them precisely in the same manner as it has done this day, and it supported its opinion by the quotation of the same great leading decisions which It has now again referred to. If, with this in- formation, and after such caution given, parties will take upon themselves to be wiser than the law, to contravene the provisions of the legislature, and to act m defiance of the Court, to themselves only they must attribute the consequences. But the respondent, though thus without lawful excuse, has thrown himself upon tlie compassion and mercy of the Court. He alledges, that thou-h " he has property sufficient for that purpose, en- gaged as he is in commercial concerns, it would be highly detrimental, if not ruinous to him, to be com- pelled to pay the said sums into Court." I hope, in attending to that plea, I do not suffer my feelings' as a man to encroach too much upon my public duty; but I am unwilling to exert even the just authority of the Court, to the detriment of any individual. However unjustifiably they may have acted, the Court IS disposed to enable the parties, as far as is •consistent witli its duty, to disentangle them;selves, m Thp Hkhkimeh. Jan. .oUj, 1000. 166 The Herkimek. Jan. «6fh, 1808. I Ml CASES DETERMINED IN THE if possible, from the difficulties in vvhirh they are involved. I have no doubt but the re.r»o,Hleut is responsible, both now and after the final decision, to the full amount of the proceeds of this shir, and caro-o: the only rei.ef which it is in the p.uer of the Court to allow, is that of delay as to the time of payment. The respondent prayed the Court to receive ano- ther affidavit in explanation of the t^a^^sactiol, be- fore It decreed any further process, the material part of It was as follows; "The only means which now remained to be adopted were to let the ship and cargo be «,>ld under the authority of the Court, but adhe.in;. to the pur- pose of compromise, the basis of whirl, was that Gns^old and n.y.elf should be accountable to the claimants for the sum of i:4.%B75(from ul.ichuould be deducted £>3,(m, their part of the sum commo- mised) It became necessary that we should not suf- fer the property to be sold for a less sum ; it was agreed that I should become the ostensible bi,325. Thus I held an interest in the George's cargo, to New York, of two hundred and twenty tons of cocoa. I also agreed with him for a certain commission of four and a half per cent, to consign my said part of that vessel's cargo to him for sale at New York, he guaranteeing to me the sales and remittances. In consequence of his allowing me to ship to London his half the bark, to be consigned to my correspondent, and the proceeds to be under my controul, 1 allowed him to retain 17,400 dollars (the prime cost thereof) out of the proceeds of the George's cargo. The balance of the proceeds of that consignment, and the amount of sales of the ship, Griswold was to remit to my agent in London^ on or before the 1st of August, 1807, in the event that the compromise, could not, by the opinion of Sir John Nicholl, be legally completed in the Court of Appeals. Fcr the more clear elucidation of these transactions, and the state of Mr. Griswold's ac- count with me, I refer to the annexed paper, by which it will evidently appear, that he has under his controul the proceeds of the ship and cargo, to the amount of about i;27,000." From this affidasit, though the respondent had stated in his affidavit that it would be " grievously oppressive upon him to be compelled to pay the said proceeds, when he had received but a very small part of the said property," it now appeared The HnnxiMER. Jan. i>6th, 1808. ' !'! IM i m > I 1 I" 1 W The Hrrkimer, CASES DETERMINED IN THE that more th»„ tl.ree fo,„ll,» of the property he- longed to 1„,„, and l.ad been «c„t o, l,i «« . ac- auove a joar since. That though the rcspohde.it had slate.l, <■ that he had „„t derived the s,„al,e»t nroht or advantl;' from h s transaolio,,,- yet that ,t was i,. reality a speculat.0,. frou, „hieh the „.ent» o.pee.ed to ave received „,„eh e.noluu,,.,,, , tha, the bark a„d cop! per sent to B.gl,,ul an.l l„s,, „.e,.e covered by an cZr ;■'.',"" ^""'«'»'->™t i" the account ca,go at New i „rk. compared with the price; paid .y .1 e respondent to Mr. IIM an.l Mr. GriJoM. the .espondent e.^,,ecled to realize above £:)000 upon those sales oMy; that ,h„.,e sales having been effee ed, an.l Mr. C„Wrf charged with ,ho°e p':" that parr„T;i •'' ""t "" "■''^"' '" "'^'-^ "-' tha^ pa,t of the specul.,l,on had sncceede.I. I hat thoush the respon.lent stated, .hat one prin- cipal reason for listening to the claims,.. .? ^ , -s^ •■ the great loss of^.telttt ' ^ mT: tie mode' r"""?"-*^ <"■ "" "'•l''^^'-' J-^' ">»' by the mode adopted no interest whatever would be n^ade npon ,|,e proceeds for the bene/it of ,1 e 'ap- P^'cHber: ' l""™ "T ""= ^^^^ '-" "- -' od the »^r *' ■ """"'^ "P"" P"'''i<= ««c'"iiy. where the accun-ulatnig interest wonia have paid hlev penees of the can.se. ^ "" **■ And, upon the whole, that though these sCte n.e ts were ,™„.a.erial to the points i^ ,,uetb 1 P t lestid ,"''"'°r=, "P"" "-". -dereJ he COURT OP VICE-ADMIRALTY. Ttie Court lionever in fixing tiie time for pay- ment coiiNiilfe«l liie wislies of the party himself, and, iiccor(iin;;ly, Decreed a peremptory monition to the respon- dent, to pay i:41,«7l IJJ.v. 4r/., with interest, from six months after tiu; sah . on or l)eforc the 10th day of May next. 16§ Til*' ITfRKI (PR. Jan. 86th, lUOB. Inst'uicc Court. ^T^IIE Ship Active was seized in port by the col- -■- lector. iShf sailed from Bristol under licen( e for 6V. Domingo, pui into Cork for a eouvo}, vvheie she took in thirty-four cases of wme. Slie touched at Madeira, MJiere she exclianged some gooos for wine. Upon her arrival at St.. Dummgo, she landed the thirty-four casks of wine, and abuut a fourth part of her cargo, and took in nothing in return hut some coffee and sugar, lor the use of the ship, ex- cept a bale of slops which had been put on board by mistake, and were relanded. Having received some damage she put into Piiiladelpluu to get a mast, »old as much of her cargo as was required to pay for it, and then sailed for Halijax. The King's advorate prayed the condemnation of this vessel and cargo upon two grounds, that of an importation from PliiUulelpkia, and of a departure from the licence, by touching at Cork and Muiiecra, and not returning to Bristol. ^ Judgment. — Dr. Croke. I cannot consider these as deviations from the li- cence. The vessel put into Cork merely for the pur- pose of joinmg a cuuvoy, which was about to sail May I8t(i, 1808. loiirliing at Viirk Cor con- voy, iiliil at Mmteiru, no ^ it an importation from Philadelphia, since whatever COURT OF VICE-ADMIRALTY. wight liave been the original intention of the master, his putting in there appears to "Tiave been merely occasioned by necessity, nothing more was done in that port than what the distressed situation of the- vessel required, and no part of the cargo brought here was either landed or entered there. The King's advocate having failed therefore in the proof of his allegations, and there appearing to have been no grounds for >he sei7ure of this vessel and cargo, I declare the same to be restored with costs. 171 The Ship Active. May 18th, 1808. The Fly, Frazer. On further proof. Judgment. — Dr. Croke. ^T^HE further proof in this case is insufficient, and -■- I therefore condemn both ship and cargo. It has been brought in after nine months have been al- lowed the parties for that pprpose, and which was sufficiently ample to have procured what would have been satisfactory, if it could have been ob- tained. The vessel was taken upon a return voy- age from Vero. Cruz, to the United States. Her cargo consisted of one hundred and fifty thousand dollars, bark, and logwood, to a large amount. The peculiar nature of the port from whence the vessel was bound, and the great value of the cargo, natu- rally engaged a considerable portion of the atten- tion of the Court at the former hearing, and must have been no less an object to the owners. The Court therefore required proof of what did pot ap- July4ih, 1808. Trade to Vera Cruz. Licence nol produced, an«l proof of propel ty not satisfactory, on fiirtlier proof. Con? deniued. J 1 1 B't |f ] 172 The Fly, July 4th^ CASIiS DETEttMlNED IN THE _ pear in the first instance, of the authority under which this vessel had gone to Vera Cruz, and of the ownersliij) of the American claimant. The trade from the United Slates to Vera Cruz, is not in any manner prohibited by any orders or instructions which have been given by His Majesty, With the legality of the trade, as far as the laws and colonial regulations of Spain are implicated, and the licences under which it is carried on, as a mere part of the internal policy of that country, we have no concern. But as the colonial trade is much confined to Spanish subjects, and may be placed under such limitations as may render it completely an adopted trade of the enemy, it was required that the claimants should produce the licence and au- thority under which this voyage was made. This has not been done. The proof of properly is left as deficient as it was upon the first hearing and the difficulties which then appeared have not been removed. Tlie orders upon the outward voyage, which are now brought in, do not explain the transaction. The master was directed to bring only dollars in return, but here is bark to the value of two thousand seven hundred pounds^ besides other goods. This at least is an advance. The outward cargo does not seem to have been paid for, yet no authority appears for making any ad- vances. In short, the whole transaction is left in a degree of obscurity, perfectly inconsistent with a real and fair transaction. A business to so large an amount could not have been carried on without many do- cuments which might have been ready to produce. Such a quantity of property could not have been left so entirely without documents as this now ap- pears to be. There must have been authorities. COURT OF VICE-ADMIRALTY. powers, accounts and correspondence, sufficient to comprehend the whole of it; and to explain every circumstance. I feel no scruple therefore in con- demning* both vessel and cargo. TV. B. This sentence was affirmed by the J^ords of Appeal, upon the 18th July, 1809. m The Fly. July 4tli, 1808. " «l' Beaver Schooner, John Jones, Master, in Ballast. April tm ' 18ci. rpHIS vessel, in ballast, from Neiv York, was T.,detoSi -■- seized in port by the collector of the customs at Oomingl. • Halifax. The allegation on behalf of the seizure, stated that she was seized on the 27th of March, 1809. That a licence had been granted at Halifax, to trade to St. Domingo, to Jngus Shaw, the owner of the vessel, and to Hartshortie and Boggs, mer- chants of Halijax, as shippers. It stated that the produce of St. Domingo, brought back to some port in the province of Nova Scotia, shall not be liable to condemnation; that she sailed from St. Domingo, to New York, against her licence. That ships must be registered in the port to which they belong; that she was registered in Quebec, not the port she sailed from. Claim of Master. The ship, in ballast, was claimed for Angus Shaw, of Quebec, who was the owner, according to the best of deponent's knowledge and belief. Ii> November, appointed to the command by Messrs, Robinson and Hartshorne, of New York, the agents as be uuderstOQd, and verily believes of the said 174 The BSAVBIt SchooBer. April titb, 1809. CASES DETERMINED IN THE Angus Shaw. In 1808, he sailed in November, for Halifax, arrived in December, addressed to Harts- home and Boggs—ii a licence could be procured, to Havannah, or otherwise to St. Domingo— master's name indorsed at -Ha/i/aa;— obtained a licence, sailed 28th December, arrived at Port au Prince, 27th January ; disposes of bis cargo, took on board a cargo of coffee and wood, for dunnage. Before he left St. Domingo, he received intelligence that His Majesty had granted permission to vessels to carry and return cargoes to the United States. Sailed 14th February, for New York, arrived 4th March, discharged his cargo, thereby concluding his voyage. 19th March, sailed from New York, in ballast, for Halifax, arrived 26th, and seized 27th March. Master's Examination. 4th. Took the command ; 6th November, the for- mer master, ^ngT<5 M'Intyre, delivered the papers; 6th known her only from the time he took charge. Built in Quebec. 7th Believes the licence did not warrant or autho- rize her to proceed on the voyage, as pursued by the deponent, only back to Halifax; but on his arrival at St. Domingo, having seen a proclamation, which was stated, and he believes to have been issued by His Majesty, as it is called the king's pro- clamation, authorising British subjects to trade and carry the produce of St. Domingo, to neutral ports, he was induced to go to New York. 8. Does not know under whose management, before he took the command ; since, under the direction of Messrs. Robertson and Hartshorne, he corresponds with them only respecting her concerns. 9. Cannot un- dertake to swear who are the owners, fmtlier than he believes her register will tell. Believes Angus mher, for HartS' ►rocnred, ■master's licence. Prince, in board Before nee that isseis to ' Stales. ved 4th icluding ballast, March. the for- papers ; harge. * autho- iiied by on his mation, e been g's pro- id e and .1 ports, oes not :)ok the Messrs. Is with lot lin- er than Angus COURT OF VICE-ADMIRALTY. Shaw is the real owner, as his name is in the regis- ter ; no correspondence with him. Papers. 1st Register. Angus Shaw, owner, AngusM'Intyre, master; built at Quebec, 2d November, 1805. 4 th Indorsement at Quebec. On the change of master, to Louis Lcverai, U\\July, 1806; to Basil Planli, 23d August, 1806; to Angus M'hilyre, mh May, 1807; to Jones, 23d December, 1808, at Halifax. 8th, St. Domingo, clearance to Halifax, 11th February, Sentence.— Dr. Croke. There are two preliminary questions upon the in- capacity of the claimant. ]t is said, 1st, that it is not Angus Shaw's property, because Bobertson and Hartshorne have the management. The cases which have been quoted of Robertson and French, 4 Fast. 130. Thomas and Joyle, 5 Esp, 88, were founded upon possession as owners; here Robertson and Hartshorne appear only as agents, which is stated in the master's examination. This, coupled with the register, and there being no proof to the contrary, is evidence sufficient of the property. It has been argued, 2dly, that the owner has not complied with the register acts ; that she has been employed from and to New York, which therefore is the port to which she belongs, and yet she was registered at Quebec. By several indorsements on the register, she sailed from and to Quebec till May^ 1807. There is no evidence how she has been em- ployed from that time to November, 1808, but there is no proof that she was not employed from Quebec; and during the winter she must either have been unemployed in the river St. Lawrence, or must have been employed from other ports. The owner's resi- 175 The Bbaver ScliooDer. 1UU9. I-U i It' I I lliilk 176 The Bk WF.R .Scht)o.ier. April Uth, 18U9. CASES DETERMINED IN THE dence at Quebec, and the employment of the vessel then, for a length of time, is a sufficient compliance with the act. The master is said not to be a Biitish subject, but he was born in Scotland, lived there till within four years, and is unmarried; on taking command of ^ British ship, he again resumed a British character, and is not a citizen of any other country. As to the main allegation. The vessel is said to be liable to forfeiture, for having broken her licence, by going from St. Do- mingo to IS'ew York, and not having returned with a cargo to Halifax, Since the order of council upon which that licence was granted, viz. 1 5th Juli/, 1807, permitting a qualified tradeto St. Domingo, to licencecj vessels; another order was issued, 14th December, 1808, laying open the trade to *S^. Z>o- mingo, to all British subjects, and issued orders, previous to the sailing of this vessel from St. Do- mingo To maintain this ground, the prosecutor must prove that the Claimant, by having received a beneficial licence from His Majesty, before the trade was lail open, is now in a worse condition than all other subjects, who have received no such benefit, which is monstrous. To support this, they argue, that the licence was conditional, and the condition has been broken. No such thing, 'i'here was no condition to bring a return cargo to Halifax. The out cargo was pro- tected, so was a return cargo, but there was no ob- ligation upon the owner to bring back such a cargo, even without the second order, f do not think the vessel was confiscable. Her voyage from St. Do- mingo to New York was not protected by it, and if she had been seized upon that voyage, the vessel would have been confiscable, but the cargo having i.ii! COURT OF VICE-A IJM I R ALT V- been unloaded at New York, the offence was there deposited, and unless tlie vessel had been caught in the fact, Avas not subject to coniiscatiou after- wards. Besides the voyage was completed at New York, and the present is a new voyage. Even uiuler the licence only, then it does not ap- pear, that the vessel would have been confiscable. Uut now the licence, with whatever conditions or re- strictions it contained, is swept away, and merged in the order which lays the trade quite open." The claimant is entitled to the full benefit of it, as it bears date antecedently -to the commencement of the transaction. 177 The Bkaver Schooner. April t'orA, 1009 I I restore the vessel with costs. The Schooner Eleanor, Hall. ^JUS case having been appealed to the High Court -■- of Admiralty, and the Judgment of this court aflinued, upon much the same grounds, with those which were stated by the Judge of the Vice Admi- ralty Court, they are not here repeated. They are reported in Dr. Edwards, vol. 1, p. 135. July 32d. 1809. La Furieuse. ^HIS vessel was taken by La Bonne CUoi/enne, -*- Captain Mounsey, on the 6th oi July, 1809, an allegation was now given on behalf of the Inflexible, Captain Brown, as joint captor. The cause came on upon the admission of the allegation. N Sept. 4tlj, 1809; Joint capture, conjunct ex- pedition pifad* ed in an allega- tion not proved bythe evidence actual, and constructive, assistance not proved. 178 La FURtEDSE CASES DETERMINED IN THE Se/it, 4th, 1809. Judgement— />;•. Croke. In deriding upon the admissibility of this allega^ tioii, the court has to consider, whether the parties, if they can prove the farts as there stated, have made out siirh a case, as Mill support their claim to be considered as joint captors. In the first article, they plead, that the Tnflexible and La Bourn; Ciloyeune, were under joint orders to convoy a fleet of merchantmen to JSortli America, and that Captain Alounsey was under Ca|)tain Browns oi'ders. In tlie second, that they sailed together on the 18th of June, with fifteen sail, under their joint convoy, under the command of Captain Brown. In the third, that on the second of Jiili/, at four in the morning, a strange sail appeared, distant about fifteen or sixteen miles; tliPt Captain Brown ordered La Bonne CUoi>enne to chase and examine the stra !ge sail; that thick weather came on, and La Bonne Cilotfenne was separated from the rest of the convoy. Fourthly, that La Bonne Citoi/enne having ex- amined the strange sail, shaped her course to rejoin the convoy. That at Noon, of the 5lh of July, the Inftexible being to the northward of La Bonne Citoyenne, about tifty-one miles distant, and out of sight; Captain il/oM«5^y chased the Vurieuse, and about four in the morning of the fJih, the Furieuse Mas seen from the deck of the Inftexible, above fifteen miles distant, steering nearly the same course, and La Bonne Citoyenne was seen from the mast head of the Inflexible, in chase, at the distance ofabouttwenty-ninemiles. Fifthly, that LaFurieuse upon discovering the Inflexible with the convoy, was intimidated, and was induced to alter her course 1809. COURT OF VICE-ADMIRALTV. jjq from North West, and by North, to South ; in con- ^* F„R,ru,«. sequ.nre of which, she was under the necessity of ''I^-ir approaehu.n: La Bonne Citoyame, and did actually a|»prouch her, and ahont nine o'clock the same day La Bonne CiUn,cnn,U'.m^\,i her to action, and cap- hued her about four in the afternoon of the saineday La Bonne CUoyenne did not afterwards rejoin the convoy, but b(.re away to Halifax. '' Sixthly, that the Jn/f^xible was not in sight at tl'e tune of capture, bein,: distant thirty o. forty mk'S, nor did she alter her course, or chase, but contmued w.th the convoy, believing it to have been a detanjed vessel, nor could Captain Uromt have ventured to chase to leeward, without being in danger of separating from his convoy, and neglect- ing his duty. * Seventhly, that if the Furieuse had continued the course she was steering, she would either have come into the con voy.or escaped trom La Bonne CUoyenne, and she would have continued such course, had she not been nil nnidated. These are the tacts as stated in the allegation, and mus premise, that, as a general principle, it has been the object and intention of the Courts of Vice iVdiniralty, to narrow rather than to extend, the in- terest of joint captures, and to confine as much as possible, the benefit of prize to such vessels as are the rea and actual captors. For in many cases it would be extremely hard, that they, who have borne he burden and heat of the day. should be liable to be dispossessed of a part of their reward, by vessels ^vh.ch had, no other merit, than that of having been 1" sight, or under such circumstances. Ihis claim may be reduced to three points. 1st. that an actual assistance was rendered. Secondly that N 2 t'S i I !xape irom the /,^/...A/,, and .as cL of sight. ^ ' f he engagement continued a long time, and it la, not till twelve hours after seeii.g the Jn/lexibie, ihat the capture was made. 2d. A constructive assistance is alledged upon the ground that the InJie.iOle was in sight during part of the chase, which alone, it is said, will intitle iier to share. Most of the cases, which have been quoted to prove that bemg in sight would intitle a vessel to be considered as a joint captor, suppose it to have been at the tmie of surrender. Even then, an opposite course forms an exception, and every other circum- stance which shews there was no animus perse- quench as a want of knowledge, and intention. Here the two vessels were sailing at a large angle from each other, and the distance was continually iMcreasing. Captain IJroivn took it for a detained vessel, and therefore he had no design of co- operating. But there is another consideration more luaterial: Ihe Captain of the Indexible could not have quitted the convoy, to chase a strange sail, MUhout a breach of his duty. In the Waaksamkeil it was held necessary to prove, that the capture was ["ade withm such a distance as would not totally Imve removed the vessel from the fair limits of her convoy duty. Here it is admitted by the allegation, for It ,s Slated, "That Captain Brown could not have ventured to chase to leeward, without being in clanger of separating from his convoy, and neglectt ing his duty." AH constructive assistance must be founded upon a supposition, that an actual assist- ance would hav, been given if necessary. It cannot, therefore, be raised m cases where such assistance 'll 111 !^H ^i I, ft i&L^i P" t' 182 CASES DETERMINED IN THE I t ^^Z:^^^ coukl only have been given l,y a breach of duty &p/^.4th, which IS in se a legal impossibility. ' It is next alledged, that these two vessels were engaged m a joint operation, that of convoying a merchant fleet, in which both were equally em- ptoyed. * "^ ' The general principle relating to associated vessels was laid down in the leading case of the Vryhicd* but there the exceptions were principally dwelt "pon. fn the rase of the Forsighied]' the general rule was stated more distinctly. " A fleet asso- ciated by pid>lic authority, is^onsidered as one body, unless detached hi, orders, or entirely separated by accident ; and what is done by one, continuing to compose, in tad, a part of that fleet, ensures to the beneht of all. By detachment, is meant for some distinct and separate purpose, which carries them out of the scene of common operation for the time ; not merely whether they were sent only ou the look-out to preserve their connection with the service of the fleet, and maintain their dependence upon it." Hence arise two points for encpiiry. Was this a joint enterprize? Was La Bourn Citouenne de- tached from it ? 1st. It is stated that " the Injlexihle wjjs ordered by the Admiralty to proceed, in company with La Bonne Citoyenne, from Portsmimlh with' a convoy • of merchant ships. Captain Mounsey was placed under the orders of Captain Brown, and was di- rected to associate and co-operate with him in the protection and safe conduct of the convoy, and to obey his orders." This certainly constitutes, i» the lullest manner, a joint enterprize. 2d. Was there a detachment on a separate ser- * Roh. II. 1(5. I ;joj. jj,^ ,^ COURT OF VICE-ADMIRALTY. J83 Sept. 4th, m09. vice? To examine, to chase wiihin due limits, and LaPurieuse. to capture the enemy's vessels, is no doubt a part of the duty comprehended within the service of a con- voy. In this chase Captain Mouiuey was within the line of his duty in furthering tlie common object and purpose of the convoy, and was therefore di- rected by Captain Brown to chase the strange sail, in the course of which duty this capture was made. The connection was perfectly kept up by his making a signal to Captain Momisey not to risque losing sight of the Commodore, and the actual separation was only in consequence of an accidental fog. So that La Bonne Citoyenne was not detached from the convoy at all. In the Forsighied, instructions given to a vessel " to avoid" being at such a distance as not to observe signals, was held not to be a de- tached service. That case applies exactly to the present; but there are some facts even more favour- a()le, and which, though not sufficient to found a jouU capture upon, as amounting to an actual, or even a constructive co-operation, yet are circum- stances which afford stronger proof of connection between the two vessels, and with the prize. There the captured ships were not seen by the fleet till they were in the possession of the captor, so that he could have derived no manner of benefit or assist- ance from it whatever. In this case the prize was actually seen by the Inflexible during a part of the chase. Some remote aid was afforded by the /w- flexible. Both officers were acting in their proper stations ; Brown protecting the convoy, Momisey chasing the enemy. Jf Brotvn had not staid with the convoy, Mounsey could not have quitted it to chase. By falling in with the Inflexible, the prize was so far intimidated as to change her course, by iviiich means La Bonne Citouenne was enabled to • I 184 CASES DETERMINED 1\ THE ^J^P^^^ come up with her, and in consequence to fake her. ^Tsof' ^^^ inflexible was certainly the causa sine qud mn of the capture. If the good of the service is to be attended to, that would support the admission of this claim. If ships, by chasing out of sight, could exclude the other vessels, engaged in the same service, from chasing in prize, it would act as an encouragement to violate their duty, Sy going too tar from their convoy. I admit this allegation to proof. This cause came on to be heard upon the evi- dence on the 25th Nov. 1809. It was proved that the Furieuse was not intimidated by having seen the Inflexible, that assistancewas then impossible.and the surrender was in consequence of all her ammunition being gone. It appeared to be far from a clear point, that the Bonne Citoyemie could not have come up with the prize if she had not changed her course npon seeing the Inflexible ; several of the witnesses swore that she could have overtaken her. Most of the questions of law having been argued and decided upon the admission of the allegation, the case turned upon the joint co-operation. The orders from the Admiralty were produced, which were to the follow- ing purport. " To J. Brown, Esq. commanding the Inflexible, at SpiUicad, l7th May, 1809. You are to proceed forthwith to Halifax, taking with you any merchant ships may be lying at Spit- head ready for sea, and on arriving there to put yourself under the command of 8ir John Borlase tVarretir The other was directed " to W. Moumey, ±isq. La Bonne Citoyenne, 1st June, 1809. You are to enquire for, and take under your convoy, such vessels as may be ready to sail to Nova Scotia, New Brunswick, and Canada: you are to put to sea on COURT OF VICE-ADMIRALTY. 185 Sept. 4th, 1909' the 10th, and to part on the Green Bank, and pursue la Furieuse. your voyage to Canada" The Court thereupon observed : *' Such an asso- ciation as will constitute a conjunct expedition, must be by superior authority. It is not the mere accidental sailing of vessels together, although the senior officer would necessarily have the command of the whole, and the others were bound to obey his signals. It must depend upon the nature of the orders upon which they sailed. In these orders no association whatever is ex- pressed, no instructions are given to Captain Mounsey to put himself under the command of Captain Brown. The orders issued at different times and bear different dates. Captain Brown might have sailed before Captain Mounsey's orders arrived. The services are different. Brown was bound for Halifax, Mounsey for Quebec, Mounsey, indeed, was to take charge likevvise of such vessels as were destined to Halifax, in his way, in case such happened to be ready to sail. But this waS only an incidental part of his duty. Their duties, therefore, so far, incidentally coincided ; but they could not be considered as composing one conjunct and indivisible expedition. I am of opinion, therefore, that the allegation given in on behalf of the Inflexible, is not supported by the evidence, and I pronounce against its claim to be admitted as a joint captor. Note. The sentence, in this case, was affirmed by the Lords of Appeal, 9th May, 1811. i' I ifffif ,: «,p, W^ ' -i Mm . i- mi , '■■■ ! J . .:,", h(^ Im^ -:.fa[i]|j| 186 .GASES DETERMINED IN THE 1 '•■ : f. Jan, 8tli, 1810. On the V2Car. II. f'hap, m. Sect. y. alkiis ;. , , j^^^.e.y,vh.h;,::d::^!:j:::;,t:r , i 1 . ' "^'^f-i, 1 ndi no alien or rii^rtnTi >'"t hon, ,v,thh, the ullegiaoce of the kh,. 2! exercse the trade or occpa.io,, of a Lr^„ „ :t;r r;:;:;:', "'"""T - '-'-S:t: Of ^,«m.«, „p„„ pain of forS of tiu' ■"'",' and chattels, or which are in k 7 ' ^"°''' JI. c. 18. Sect. 2.) Tl seel rTT'""; ^'' ^•^■ jurisdiction of tl e Cour .? f" ^^'""^' "'" King. Thi,-,l tha! i\T , , " "" *""' "^ "'« JVora Ai„(,„, one of his Maies v'sli ■'"''' '" •alions, in America, sei!e I hv 77 ""''^; "' "''"'■ ii«q. .he Collector if the c.^st/'""*^-''^^'"^' '-/lajesty. for thatVhTsa" 'r; Z^tl^' " n.thepos.ses,,ionofone£fo, -J^J!, ^' "'' and foreigner, who. at tl^ ,1' ^1""*: '""'''■^" -cisingthc trade a..doc:;;;at;:';—^^^^^^^^ COURT OF ViCE-ADMIRALTY. or factor, at Halifax, aforesaid, and who had then and there shipped the same goods and chattels as a merchant, or factor, at Halifax aforesaid, in and on board a certain British «hip or vessel called the Providence, whereof one Thomas Mac Null was the Master, for the purpose of transporting and carryr nig the same, in and on board the said schooner to the British colony or plantation in South America, called Surinam; he, the said Bleazcr Burbank, having, as a merchant, or factor, at Halifax aforcr said, chartered and hired the said British vessel for that purpose, all of vv hich is contrary to the statutes in such case made and provided, wherefore the said articles are liable to forfeiture, and ought to be for^ feited and condemned. In answer to this libel, a claim and answer has been put in by Elcazcr Burbunk, stiling himself, late of Salem, merchant, now residing in Halifax, and John Osborne, of Halifax, merchant, wliich states, first, that the said Eleazer Burhank for him- self saith, that he is not an alien, or person not bora within the allegiance of the King, but on the con- trary, was born in the loth year of his Majesty's reign, at Deerjield, in his Majesty's then province of Ificw Hampshire, and is therefore a natural born subject of his Majesty. That becoming desirous of residing altogether in this province, and of removing his family and pro^jerty hither from the United States, where he formerly lived ; ^ov this purpose he made application, by petition, to the Lieutenant Governor, and obtained his lixceliency's permission to reside here, and also to brin^ his property here, and that he therefofetook the oath of allegiance. That having ^bond fide intention of taking up his permanent resi- dence in this province, projected a voyage from Halifax to Surimnif and back; and chartered ikh 187 Till' JProvidencb, Jan. 8tl|, » i ! ir^ 188 CASES DETERMINED IN THE Pr..vTI!'nc.e. ^^^^^^ ' ^'^^^ '" conjunction with Jo/m Osborne, the -_.-._ other respo -dent, he loaded the said schooner with luio. ' goods, two-thiid parts thereof ou his own account, and the otlier third on account of the said John Osborne. He prays therefore that they may be restored. Upon petition, Burbank amended his claim, and pleaded the statute of the l.'jth Geo. II. entitled, *i An act for naturalizing such foreign protestants as bhall settle in His Majesty's colonies iu America." A reply was given by the king's advocate to this answer, m which he alledged, that the said goods ought to be condemned, notwithstanding any thing 111 the said answer, for that Eleazer Burbank, in whose possession they wore, was an alien. Upon these pleadings several exhibits have been brought into the registry, and a great number of witnesses examined. Upon those, the facts are proved to jjave been as follows. That Burbank was born in the Uniled States of America, in the 15th year of the present King, when they were colonies of Great Britain. That he resided there till the latter end of last year, when being desirous of removing his tlimily and property into this coun- try, and to become a subject of the Kinp-, he petitioned the governor, and received from him a licence, bearing date the 2d of December, in these words: "permission is hereby granted to Eleazer Burbank, an alien, to reside within this province during pleasure, he having given bonds according to law, and in such case made and provided ; signed George Prevostr The law to which the licence refers, is a provincial law, passed in the general assembly of the province, in the 38th year of the King, which enacts that, - no alien who shall come to reside within the province of IS ova Scotia, shall' COURT OF VICE-ADMIRALTY. be permitted to be, and remain within the province, without a special permit, under the hand and seal of the governor; that to attain such permit, he shall state in writing, his name, age, place of nativity, rank, and occupation," provided he shall enter into a bond for his good behaviour, and comply with certain other regulations ; " and it is further enacted, that if any alien, as aforesaid, shall not ob- tain a permit, he shall, on conviction thereof, be sentenced to imprisonment, or pay such fme as shall be imposed by the court, before whom he shall be convicted, and be transported beyond His Majes- ty's dominions in America, to such place as the governor may think proper." This prosecution is founded upon a clause of the celebrated navigation act, of Charles the Second, which, though not often acted upon, yet never having been repealed, and having even been recog- nized by. the legislature within a very few years,* is stdl in force, unless so far as it may have been par- tially repealed by any particular subsequent acts, as has been alledged by the claimants, or unless the parties are protected by the governor's licence. It may be convenient to consider iirst, whether the claimants are persons who come within the act, that is whether they are aliens, or persons not born within the allegiance of our Sovereign Lord the Kmg, and are exercising the trade or occupation of a merchant or factor, within this province. It is admitted that Jo/in Osborne is a Brilisli subject. The only question relates to Eleazer Burbank, who is alledged to be an alien, and therefore that his property is forfeited under the act; as likewise the rest of the cargo, whether belonging to Osborne or 189 The PnovinENCi. Jmi, 8tb, 1810. * 37 Geo, III, c. G3, sect, 5 m The P/lOTIDENrr CASES DETERMINJSD IN tllfi Jitn. 8tfi, 1810. Others, as having hccn found in the possession ot — liiuban/c. 1 shall consider the following questions: 1. Is Jiurbimic an alien? 2. Has he been exercising the trade of a nier- rhant here? 3. Were the other goods founr. Croke. ry. 'IPHIS vessel was seized at Uorlon, in this pro- -*- vince, having on board fifty-seven oxen, three casks of gin, and some tobacco. The vessel is claimed for Daniel Curry and Mark Treffry, thirty-eight of the oxen for Richard Curry and Andrew Curry. No claim has been given for the other nineteen oxen, or for the gin, or tobacco. (Ihe Court then stated the substance of the libel and of the claim.) On the part of the captors, five breaches of the laws have been alledged. 1st. The trading from Campo JJello in New Brunswick, to Mova Scotia, not being owned aiul navigated according to law. 2nd, The importation of oxen, tobacco, and gin into New Brunswick, from the United States, bv an' alien. 3dly The importation from the United Stales into Nova Scotia, m a vessel not owned by British sub- jects. 4th. By persons not British subjects. 5th. That the cattle were in the possession of COURT or VICE-ADMIRALTY. SOI Nr persons who were ext rcising the trade of merchants, bejn^ aliens. As the same qualifications are rpquired, in vessels importing goods from the United States, as for tlie coasting colonial trade, it is not very neces^ary to de- termine, whether tliese goods were first imported from the States, or from New Brunswick', but it clearly is an importation from Campo Bella, as far as (he ship is concerned. The cattle were already in that island, and were regularly cleared out at St. John's. Whether they were lawfidly imported into Campo Bello, may be another question ; but as there is no privity between the ship owners, and such impor- ters, the ship cannot be affected by that question, as thty were not imported in it. This then being a trade, from colony to colony, the case must be decided upon the acts of parliament relating to this branch of commerce. By 7 and 8 fV. 3. c. 22. sect. 2. " No goods skall be carried from any one port or place, in the colonies, to any other, in any ship, but of the built of England, or the colonies, and wholly owned by the people thereof." Sect. 17. " No vessel to be deemed such a vessel, unless registered, upon pain of forfeiture of ship and goods." There are then two questions, the ownership, and the registering of this vessel. 1st. As to the ownership. Certainly if, as it is alledged, Andrew Curry, is the owner of part of this vessel, lie is not entitled to be considered as a British subject. The word " people," was early interpreted to mean " inhabitants ;" and it was finally settled by 26 Geo. III. chap. 60. sect. 8. by which it is enacted, " that no subject of His Majesty, whose usual residence is in any foreign country, shall be Tlic Schooner Friends Adventure. Dec. istb, 1810. 209 The Schooner FnitNfis Advkntuhe. Dec. itith, 1810. CASES DETERMINED IN THE deemed, or entitled, during his residence, to be owner of any Uritiiik vessel." It is said that An- drew Curry sold his hmd in Nova Scotia, and went to the Uttiled Stales to dis{)ose of plaster, and pur- chase corn; and intended to slay a short time, and return. But there is no evidence of such intention. Robert Curry states, that Daniel sold the second cargo of plaster, and therefore it has been argued, that Andrew was merely his agent. But the statute makes no exception of agents for persons in the colonies, though it does of agents for houses in Great Britain. AH the witnesses agree, that he was then residing in Moose Island, in the Ihiited States, with his wife and family, and keeping an inn. The words of the act are, " during the time he shall so reside." He is no doubt disqualified by such, his residence, from being owner of a British vessel. But is he the owner? It is alledged that the property was originally in 3Iark Treffry, and Daniel Curry, but that they had sold it to Andrew Curry. The register, and the admission of the captors then, are proof that they were owners at first; and the question is, whether it has been trans- ferred to Andreiv Curry. This, R. Curry and Mark Treffry, one the pur- chaser, and the other the buyer, deny upon oath. It would have been more proper to have stated par- ticularly, some transactions respecting an iniended sale, which certainly did take place. It is proved, that an agreement had been entered into for the sale ; that a part of the price had been nominally paid, by two notes of hand, and that possession had been delivered. This, no doubt, would have amounted to a sale, if no acts of parliament had Th( COURT Of VICE-ADMlliALTY. »)3 e, to be that An- intl went and pur- ;ime, and ntention. i second I argued, e statute s in the ouses in that he 3 Vnited :ping an time he I i tied by British g^ed that %, and Andreiv of the mers at n trans- the pur- on oath, ted par- liended proved, for the minally ion had i have 3nt had fntervened, but there are certain acts to regulate the TiieSchoow transfer of vessels. ' '''""'''"'' By the 34 Geo. IH. c. 68, :, >. 7. whenever the niaster is changed, the pe.si.o '»eeo!a- ing master, shall give secmity by b.i ment, although it is admitted that Duiuci Ci^nti \^ her Al>VliNTtR«. Dec. \i\hf 1810. f04 The Schooner FniENos Adventure. CASES DETERMINED IN THE Dec. 12 th, 1810. master. It so appears on the clearance, at Campo _ Bella, is so stated on the claims ; but it has been alledged, that this was owing to the neglect of the officers of the customs, who were informed of the change, and I ad the papers in their custody. This rests only upon the assertions of the counsel. It is not ascertained, not so stated in the claim, or proved by any witnesses. If the fact were so, it is not a sufficient justification; it should have been proved, not only that the papers were in their possession, but that the certificate had been delivered to them, for this very purpose ; that they had been required to do It, and had neglected or refused. Nothing of this appears; there is no protest, or even assertion in any affidavit or document whatever, of this fact. The sect. 40 of the 26 Geo. Ill, speaks of officers vho wdfully neglect, or refuse to perform any act J-equired to be done by those statutes ; and if such had been the conduct of these officers of the cus- toms. they were liable to a penalty of £500, as well as further responsibility for the consequences of their breach of duty. It is therefore a serious charge against those officers, and not proved by the slightest evidence. We have now to consider what are the conse- quences of this omission. By the 27 Geo. III. c. 19 and 13, " all vessels not registered according to the directions and regulations of the 26 Geo III although owned by British subjects, shall be' held! and deemed, to all intents and purposes, as alien ships ; and shall, in all cases, be liable to such penalties and forfeitures as alien ships." That the name of the master should be correctly ascertained IS a material and integral part of the object of these regulations, and a great number of them are directed to this point. lo case of a sale to a at Campo has been 3ct of the !d of the ly. This el. It is )r proved is not a 1 proved, issession, to them, required i>thing of assertion his fact. r officers any act if such the cus- , as well ;ncps of serious (1 by the 1 conse- ll.c. 19, g to the 'o. Ill, ie held, IS alien :o such 'hat the tained^ f these m are e to It Dtc. I '2th, lUIU. COURT OF VICE-ADMIRALTY. gos foreigner, he is the principal person looked to for The Schooner the delivery of the certificate, he gives a bond to x^y^u^^vL. that purpose, and as no special penalty is inflicted upon the neglect of the direction, upon a change of master, this part of the act would be neglected, un- less it were in the power of the court to inflict some penalty Since therefore, vessels not complying with the directions of the act, are not to be consi- dered as British vessels, this must be taken to be an alien vessel, and as such, both ship and cargo are liable to forfeiture. The Merced, Echeverria. rpHE King's Advocate for the Captorsr-V [)on the -■- original hearing, contended, that, admitting this ship to be Spanish, she would be liable to con- demnation, upon the principles established in the case of the Amedie, having fitted out, in a port of the United Slates, for the avowed purpose of en- gaging in the slave trade. That although the go- vernment oi Spain had thought fit to permit a con- tinuance of a traffic, which other nations had re- cently abolished, the owners of the Merced and her cargo, had, in a port of the United States, in defiance of the prohibitory laws of America, undertaken to equip the ship, upon a voyage to the coast oi Africa, there to receive slaves, and proceed with them to the Havannah. This was an act, not only contrary to the laws of the country, in which she was so- journing, but contrary to the statute laws of Great Britain, and, indeed, to the ordinary notions of humanity. March 15th, 1811, Slave trade, detection of American pro- perty, conceal- ed under a Spanhh clia- racter. Condemned. I 1 I 1 ,1 !i I r- I 'Sit I SOQ TUe March i.jtli, 1811. rl I. CASES DETERMINED IN THE So that admitting- the Merced to be a SpanisTi vessel, she would, for these reasons, be liable to forfeiture. But this ship is not documented, as i Spanis/i vessel, having no regular papers that can give her that character ; and there is every reason to believe, from the general deficiency of the evidence, that both ship and cargo are the property of ■Americans. If so, the judgment that has been given 111 the case of iin^ Amcdie, will forcibly apply to the present case, and a decree of cundeuuiution must ensue. Ou Ihebehaljofthcchiimunts, I he Solicitor aenerol observed, that, if the ship and cargo were admitted to be 'S)>aw/5/!property,there would be little dimculty m the case. Under the government oi Spain, there are no prohibitory laws against the trade in question, and theequipment of theshipin a part of the United &talcs, if it be a violation of any law of that country, IS not elsewhere a sid)jectof legal discusssion. The ship and cargo are evidently Spanis/t, nor is there any deficiency among the papers that can warrant a suspicion of American interest in the property, or any part of it. But, allowing such interest to exist m this projected voyage to the coast of 4frica, n may be argued, in the first place, that, although the ultimate destination of the ship was to the A/rtcan coast for slaves, the immediate voyage was to the island of Teneri^e, and at all events, she has not been captured in delicto. In the next place, if the prmciples adopted in the case of the Amedie, are to be applied in the present one, it becomes re- (iuisile to asceiaain what are the specific prohibitory regulations of America, with regard to the slave trade. A knowledge of American law, upon this important point, is absolutely essential, if the pu- nishment of an offender against that law, js to be iii- I f', a SpanisTt ) liable to itcd, as -i that cat) reason to evidence, •perty of een given [jly to the tioH must /' Cienernl admitted diliicidtv lin, there luestiou, le United country, ion. The is there warrant )roperty, ; to exist J{frica, ilthough 5 to tlie age was she has place, if edie, arn mes re- hihitory !ie slave )on this the pu- o be in- COURT OF VICE-ADMIRALTY. Hicted l)y the decree of a Drilish court. Different jidialties may, perhaps, attach at different stages of the offence, and to didcreiit persons engaged in it. Does the condenniationof the ship and cargo, ensue in all cases? In uhat \vay is the crime dehned by the legislative acts of America? What are the pro- visions or exceptions of those acta, and to what ex- tent have they carried the prohibition of the trade? These are questions, that can only be answered by an acquaintance with the law, of which, nothing more seems to bo known, but that it prohibits a trafficking in slaves, which had been previously sanctioned by the custom of past generations, in all parts of America. The case of the Amedie has not been, as yet, officially reported. It has only appeared in newspapers and reviews, in which one cannot look for great accuracy of statement, with regard either to law or to fact. The great and good judge, who pronounced the decree of their lordships in that case, is said to have observed, that until the l^r<7/W< legislature thought fit to prohibit a continuance of the slave trade, no notice could be taken of the prohibition on the part oi America; and that an act of parliament having now abolished the trade, it is the interest and duty of the nation to unite with America in preventing a traffick so inconsistent with the Hrst principles of hu- manity. But the same learned ju«/,iaA or yiAMmcttw characters; ^^,j the learned judge has also observed, that we cannot legislate for other coiiiilries, and that if other countries violate the natural law of humanity, by encouraging a trade III slaves, we have no legal right to controul their conduct. So that the general sentiment of accusa. tion against this pernicious trade, is founded, after «li, upon tiie municipal regulations of the country in which it is prohibited. When prohibited in Ame- rica, it was allowed in England, and though now pn)hibited in EngUmd, it is permitted in other nations in Europe. U tljis ship and cargo, there- f()re, be SpMiish, tliry must be tried by the test of Spmisk law, and the ordinances oi' Spain referred to .'s;id cited for the direction of the Court in its sen> ttiice. Ir they be American, reference must be liad lo the statute books of America, and though a law of that country may prohibit the trade in question, and inflict a penally for the transgression of it, tiiat penalty, in certain cases, may be fiir short of the condemnation of the ship and cargo; and yet, in the present instance, and in all cases of the Kind, a for- feiture of the whole property, if American, is re- quired, without a consideration of any part of the law, under which the condemnation is sought, but the mere prohibition of the trade on the partof jlwje- ncu. As this is a cane primce impressionis, and no reported decision of that o{ i\ie Amcdie has yet been published, these arguments on behalf of the claim- ants, are submitted, with the utmost diffidence, to >he consideration of the Court, which may probably W «io, .sIlDulll Spunii) U])on fi c Ji This v propcrt dc AJH. Cruz in isl IIKJ (( W her c\'tl;':i('f 111' Slav Appf'fd i t!i;it t!ii fi liinaiif Uiilcss th ancrmift Ii follow pro\e to uiidpc th( I' l0!lg' (1 rciiuiricd trade hy i nolorious years, vtt with the y nf'g -tiafin the fiiciid Alarck l5tU, lUll. COURT OF VICIi-ADMIUALTY. ^q^ conrelve il.elf bound by d:'nee it a,)p< ared that t!ic vessel was eng^iged m til' slave tr:..-!o. Rv the decision of (he Lords of Ai.|)r.',| in the case of the Anicdic, it was e t i!>l.shed i\y'ii this tiade was unlawful in itself, and that flu!nan(s cannot recover properly eniployd in it ii:.i<'ss they can shew a special jnstilication; that it is a nermHted trade under the laws of thc.'r r,wn country IJ followed theref>re. that if this property should prove to be American, it would be condo.uuahle uiicJpr the authori(y of that rase directly. B.it if it I' loiig'd to Spaiu\,rds, as it has been claMued, it rciniined for the parties to shew the lecralitv of the trade by ihe laws of Spain : f.u-, aKhough it has been no(onousiy tarried on by tliat country for many jears, vet as the Ilriiish Government, in compliance ^vl(h the wishes of parliament, has pledi^od itself by ip -tiation to procure its universal abolition, from the lucudly relations whi-'^ subsist between the two fi 210 CASKS DF/rrHMlNKD IN THE If 1 I if V I I " La Mcnc.n. roiiiif ri'cs, it Is iiot iinpossi!)1c :, after the alledoed sale, to trade to the ports of the former owners, who still appeared to he cmcerned, under the character of consignees, that the transfer was merely (ittitious, and for the purpose of coverin;:^ this unlawful trade. The Court therefore directed I'urdier proof, as to the property, and as to the t'xistinjr laws of Spain upon this suhject. A volu- minous body of papers is now brought in, upon Mhieh it is the business of the Court to decide. The general history of the vessel as iar as we can trace it is this. She was built at Nvio York. In the month ot April ISO;), she made; a voyage from Philadilphia to the llavanna, and back. In Julij, in the same year, she was purchased by Mr. Worth of Pliila- (it'fpliia, id whose name she was then registered. She was innnediately chartered by him to 4juria, one of the present claimants, and sailed to the lla- vanna under that charter party. Here it is alledged she was sold by JlawLiiis, the master of her at that tune, by a power of attorney from Worth to JJuria. Since that period she has made three voyages, the iirst of them was from the llavanna to Phiiaddphfa and hack again to the llavanna, in 1809. The second voyage was in 1810, from the llavanna destined to Philadelphia, but not being- able to enter the DchiKarc, she went to Nao York, and returned again to the llavanna. On her third voyage, she sailed Irom the llavanna to Philadelphia, where she COURT OF VICE-Al)MlRAT;rY, anp^emcnts place with *i('.s. 1 to have V was not iitary cvi- viii^- Ixcn reason (o after the ic former lhI, under nsfer was covcrin<>^ ! (lirc(ted IS to the A volu- in, upon (le. The n trace it he month ladilplu'a the same )f Pliila- 'gistered. the Ila- allc(l«i^ed * at that ' 4Juria. ift-es, tlie 'addplua 9. The Uavanna to enter returned ige, she here she Sll p3 took in her present carj^o, and was proccedinj^ to U M.^okd Tcuevurc and so io the coast of Africn, when slie was raptured. The nuhiro of the trade with the Spnnuh colonics, ^vlneh is under the severest r.-strirtions and prohi- bitions, and alfooHher conlu.-d to the subjects of Spain, necessarily involves all foreijiners uho cn,L'-a£>e 10 It ni Hccresj and. deception; hut if this is really Spanish properly, all reason f.n- niyslerv ceases. It was (he business, and the interest of the Spanish mvners t!,at every (hin- should be fair and open. Notl.u.n- but proof, or suspieion, of forci-n owner- slnp could i.jurethern. Under that supposition it IS perleetly unaecoun(ablc why this vessel should be se.it to sea in the /Irst instance, wilhout anv written (l"cn.nen(s to prove the ownership, and will, a con- cealed desfination as to the latter part of her voNa-c. That Mr. Worth, the original owner of the vessel, was not indisposed to be concerned in profitable engagements, of uhatever nature thev might be, is prowl by his own letter to Ajuria, of tire I5th of Kmmhcv, 1809. - The ports of Cnhar be says, " and on the Main being shut to foreign commerce, handsonie speculations might bo entered into. AVe have first-rate vessels, point out an,/ vo,jas;e xvc could make nionnj by, and I u'ould uillin-ltj Join you." I would not press this letter so f.ir as to endeavour to prove JVovtKs properly in this vessel IVom it, because it is not expressly mentioned. iJnt when it appears that the vessel ever since the alledged sale lias continued to carry on trade in the same nianner as before, fron, and to the port of the former owner, and through his hands, it would not be unreasonable for the Court to require the fullest and mo.,t salisiac- tory proof of an actual sale. Now the only evidence which has been produced u\ 212 La Mercrd Uarch 15th, 1811. I t CASES DETERMINED IN THE to this point, are the affidavits of Worth, the very party roiicerned in the fraud, if there is any, and of Hau:Ains fhe former master, who knew hut little of the trail act 'on, and speaks merely to his belief as to the ownership, and other material points. The proof could not be considered as suffitient unless the bill of sale had been brought forward, and the power of attorney given by Worth to Hawkins to sell, which are the only title deeds of the vessel. Neither is there any affida\it from Jjuria, though he is held out as the principal owner, nor any information from Echeveria and the other claimants, to specify their respective shares in the concern, the means by which they acquired their interests, or what consideration they paid for them. The case is equally barren of the usual Spanish documents; there is no Spanish register, or any other paper equivalent to it, no pass- port or licence, nor is the letter of marque, which she is said to have had from the government, to be found amongst the papers. Yet these omissions are not to be attributed to the want of time, or of means, or opportunity to procure them, for there are certi- ficates and affidavits, both from the Havanna and from Philadelphia, procured since the capture. And it may be remarked, that all the additional evidence comes from Mr. Worth, who, according to the clannant's case, has no interest whatever, and none of It from the only persons who are alledged to be proprietors. To establish a fair sale the payment ought to be proved. The master has sworn, that the purchase- nionej, amounting to 16,400 dollars, was actually paid. But upon inspecting the account current between Worth and jjuria, it appears that the vessel was never paid for, and is even now mere matter of account between them, jjuria is made debtor for the vessel, but, at the time she sailed for Fhila- II i I h, the vory any, and of >ut little of )elief as to The proof i the bill of ; power of sell, which Neither is he is held ation from )ecify their by which nsideration barren of Spanish t, no pass- :ue, which lent, to be issions are of means, are certi- >anna and ire. And 1 evidence ig to the d none of 2d to be ght to be purchase- actually : current the vessel *e matter le debtor 3r Fhila- COURT OF VICE ADMIRALTY. delphia, it is remarkable that the balance in favour of Worth was 17,112 dollars, nearly the amount of the price of the ship. Ar.d the purchase money is so far from havmg been since paid, that in the subsequent part of the account which is continued to November, three months after the capture, by the consignment of cargoes, the balance is still farther increased apainst Jjurias. Nothing bui an ideal payment has therefore been made. If we look minutely at the evidence, it is full of contradictions. There are great differences as to the price of the vessel, one witness states it to have been 16,400 dollars, another 10,000, and athird at 16,100. So as to the seller, the master who claims as a part owner, and who says he saw the bill of sale, swears that she was purchased not of ^Forth, but of John Goff, of the house of Gardner and Co. the former owners. The payment is sworn by Antelo the mate to have been actually made in his presence at the time of sale. There is even a variation as to the darj on which the transfer was made, and the witnesses fluc- tuate between the 4th o^ August and the 20th. The claim confronted with the subsequent papers is falsified in many of its statements.. The master, who is not a common commander, but a part owner likewise, has there sv/orn that af New York he pur- chased a return cargo of flour, fish, and other articles with the proceeds of the outward cargo. Now if there is any one fact fully estabHshrd in this case, it is that, that the proceeds of the outward cargo were transmitted to Worth, between whom and Robinson of iVcTu York there is part of a correspondence upon the subject, and which concludes by Worth's refusal to find funds for the return cargo, as he says " he can do better with his cash." The master states that he staid behind the vessel at New York to receive S13 La MfRcrB. March 15tli, laii, i ': ' I I 214 CASES DETEUMIXED IN THE 1811. ^*"^''^ '"' payment upon no«oe, ,heie is a letter from Worth to 4}urin, mereh inclosing the bill (.f lading Another which statos a heavy balance apiinst h.m, and proposes some new speculations, but these letters are dry, meagjrc, and evidently garbled, and afford no conclusion whatever that AJuria was the owner, or had any control over the vessel. Upon the second voyag^e, she sailed from the Ha- vanna again bound to Philadelphia, but being un- able to enter the Delaware, she bore awav for New York. Here was an accidental deviation from the voyage intended, and it might reasonably ha^e been expected that it would have been explained to 4juria, and that they would have written for his in- structions under this un( xpected change of destina- tjon. There is a letter from JJuria written upon the outward voyage, directing Worth to put 500 or 1000 barrels of flour - with a false letter, that as he ^^ could not procure provisions, he had shipped fl )ur to remit proceeds. Thoi.gh it is evident from norths account current, that there was at that time a large balance against JJuria. Another letter to Echeveria refers him to Worth, and says, if he could not get a cargo as proposed, he wasto take a freight to London or to Cadiz. Now Worth is so tar fi^om complying with these directions, that on the vessels arriving at ^'^.t, IVrA', though he receives the proceeds from liobinson, he refuses to furnish a cargo, or to be accountable for it, and suggests to the master to take freight to the Havanna. U COURT OF VICE-ADMIRALTY. 217 VWth\i !,er euipioyiiunt. It is evident, that though Jjiina lis a sort of osien>iblc ownership, in name, a.'.il»titi ihi piupiise of holJiiig out ^ji^fia as the ov\ner, he irceix'd, with the most philosophic indifference and little observation, any information respecting the vessel whuh is conin)unicated hy Worth, who is equally indifferent to the directions given, and to the intimations eonveved in Worth's correspondence. The present voyage was the most important. It was a new employment of the vessel, and so ha- zardous, that it appears that no insurance could be ohtatned For such a voyage it would be necessary to have the fullest authority and directions from the owm-rs of the vessel ; yei here is not a line of evi- dence to prove that 4juria knew any thing at all about it. On the outward voyage from the Ha- raiina to Philadelphia, there was a letter from Ajuria to Worth, in which he informs him that the Merced had on board oOO boxes of sugar, and other artitles, "consigned to you, whereof I shall give you advice for your direction." We may recollect that Worth's clerk swore that Ajuria conducted the ^hiale of the said concern in the Merced: but the \'nl I ' i m f '? I f. ,1 ! 318 La AfmcRB. March 15th, 1811. CASES DETERMINED IN THE masfor Echneria, in his claim, states, that on his arrival at Philadelphia, " he wrote to the of her owners, requestinjr to know on what vova^^c they wished to employ the vessel, on whieh they proposed the present." Worth in his affidavit, says that the vessel was consipied to him, with orrlcrl to follow the direclions of Echcveria. These aeeounts are not consistent ; hut he that as it may, neither any au- thority or directions, either from Jjnria or the other owners, arc produced ; all the letters from Worth to Jju. via consist of three short ones, inforniinir him that the vessel was ready to sail, and had sailed ; there is not a scrap of papnr to shew that tliis voyajic was com- menced or conducted hy the claimants, or that they ever knew where she was going. Tmcri^tTe is men- tinned in Worth's letter only. Any farther voyage to Africa is not alluded to ; and though there might be reasons for deceiving the American cnsto«n-housc or the Brilifih cruizers, there could he none for con- ceiling the destination from the owner, in letters which were sent hv other conveyances. Since Worth acted without authority or directions from his sup- posed principals, and without giving them advice of his proceednigs, it is clear that he must have acted as owner, and not as a mere consignee. It i«« palpahle likewise, that the evidence, such as It IS, has been much garbled. Many letters are re- ferred to, which have not been produced ; and they appear to b(; the very letters by which each voyage was planned and directed. There are no letters from Echc- veria, when at Nexv York, to his allodged owners; none from Worth to Robinson respecting the pro- ceeds of the second carg., nor in any of the corres- pondence is Echcveria considered as a part owner, but merely as a master. It IS impossible to tonceive evidence, both positive lat on Ill's the odicr yagc they proposed i timt the to follow luiits are •r any aii- the other til to /Ijn^ n that the ere is not was com- that they : is mon- r voyage •re mii^ht ^>n-hoiisc for con- II letters ce Worth his sup- 1 advice ive acted such as are re- and they ^aiic was •m Echc- owners ; he pro- : corres" ; owner, positive COURT OF VICR-ADMIRALTY. j^^ a -d nega ive. more full in every part, to prove that Um.bo«. tUH IS a fraudulent tr.M.saction, and that the real properly is siill iu Worth, au American citizen, and fh.'ietoie this vessel is subject to eoiidemuation, as hdvinjr oecn ent^aged in the slave trade. The carjro does not consist so much of mercantile arlicles, us o,' stores and outlit for the slave trade; It .s, besid.vs ll\,riK}i property, having been shipped hv him w, of <„!.« and r-.^ks I'of Ma((.T. as tl.cy are ...fo.n.ed. (1...^ would not .nak. ay charge for the wharfage or s.oragc thereof.' J,, their a(Iida>i( ann.-xed t!.cv farther state, " that their ^vhar^e3 and stores have heen oc ;; cas.onally occupied, for u.any years past, with pnze cargoes and vessels; and aft.r ailedoinj. ^^ geuerallj, the fitness, satetv. a.:d hm nrn> of their wharves and stores," they saear-" Thit ''1.0 prize ship or vessel has at anj time rereived anj injury «f any description bv lyinir hI ihnr ^ xvharf, except a ship called the /.flnrt,/, which parted, and was driven from the said wh-wf in ^Seplemlnr 1798, in an uncommon and violent ^^ hurricane, yvhich destroyed many ^^ harvos and s(,.ro, ^^in HalU-ax, and in which, miny ycsscis were . ^'""^'^^'^ '" *^* ''arbour." Tiny state, " that the ^^ apartments where prize coods have usually been de- ^^ posited, arc separate and dislinct apartments. wmIi ^separate and distinct entrances from the wharl'- ^^ and that ever since the application from the Con.; ^ of Admiralty, they have considered then.srlv,s as ^^ bound to furnish and provide a wharf a.d stores ^v!lenever required." Tl,c cortiHcate of tl.irly „f (I,c „„»( r«nec*aWc mercl,a„e orders are only "to have the (apl„r.. aunrai-.d a, aforesaid." No di.echOns aro flim jor. o-,v..., the place whore they are to he d^-r-siMd, 'li- act docs not inentioii the stores of any .,f tlie p .,ti s or their agents, but st.il leaves it to tli. disereti-x, of the Court to put them into such as it niav iU^c.n to ' e "proper warehouses;'- the collector and the ar-e.ts still rctaini..!*- their care and custody of the property by having diRbrent locks upon such uar.h.M.ses as the Court may appoint for that puipose. which is all the right of possession or custody that is given by the act to the agents, and not any corp„reul posses- sion or custody in their own stores or warehouses and this possession they have joi.itly with the col' lector and the claimants' agents, and not any separate or distinct custody. And timngh the parties who apply (or the order of appraisement, are to bear the- expenses, thii gives them no additonal rio-ht or con trol over the property; there are other interests as well as theirs to be attended to, and the custody is still a joint custody. In exercising that discretion which is left with it by the act, the Court would certainly consult and provide for the safety of the property- : such is its boundeu duty : it has therefore given Imc. v attention to that part of the petition wh.ch assorts tUat ih s M'harf and stores are unsafe, and unlic for fie pur- pose. If this allegation were true, tiie Court would undoubtedly not risque this vessel and cargo in so hazardous a situation : but here is the clcaie^t eu- dence to the conirary : there is the reD«.rt of the register and three independent merchant : the afli- davit of Messrs. Foreman, Grnssie, and Con.pauv; and the voluntary certilicate of thirty of the prin. I i COURT OF VICE-ADMIRALTY. cipal merchants of the place; who all concur in pronouncing the wharf and stores to be perfectly safe, and fit for receiving and keeping prize vessels and their cargoes. One fact alledged that the stores are exposed, and that the goods must be deposited in the same stores with the property of Mrssrs. Fore- man, is decidedly falsified; since it is proved that there are five distinct and separate stores, and the whole secured by a gate at the head of the wharf. Another circumstance alledged, that " prize vessels '' have heretofore suflTrred and received great damage "by l^'ing at the same," upon enquiry, appears indeed to be partly true; but it is insidiously introduced, and cannot in any manner serve to prove the truth of the allegation, because no other vessel can be dis- covered to have ever received any injury there, ex- cept one unfortunate ship, called the Libertij, which parted, and was driven from the wharf in the year 1798, above twelve years since, in an uncommon hur- ricane, which destroyed half the wharves, and wrecked a great number of vessels in the very harbour of Halifax. How far this gentleman can justify his having thus solemnly alledged charges against the M-harves and stores of another mercantile house in this town, which might be so extremely injurious to their credit, and which might prevent any consignments of ships and cargoes being made to them from Eng- landm other places, is a matter for their respective considerations. It is not, as was argued, a compara- tive inferiority which was alledged against these stores and wharf, as being less safe than his own ; but a positive charge, that thej/ were absolutely dan- gerous and unfit. The protestor, as he alledges, to save expense to the captors, and all others concerned, has offered " that the vessel may lie at his wharf, and the cargo SflS La Mercid. AfHi lotb, 1811. I ! it, - 1 i 1 t ''1 [' ^ I . k I. if I 1 m Id^ La IVTFnrEB April 16th, 1811. CASKS DETERMINED IN THE " be deposited in his stores free from all costs and "charges," I cannot, with the petitioner's counsel, consider this oiler as so perfectly liberal and disin- terested. Wharves and stores are huilt at jireat ex- pense, and the use and hire of them is one of the fair profits of a merchant. There is no reason why a merchant should i»ive the use of them to another gratuitously, aiid to do so is not \ery accordant with the customarv habits and principles of men in trade. A porsoii who oilers such a bofius can scarcely he considered as not having; some fiitlier view, as not having looked to other profits to be made in con- sequence of it. Even to give an additional strength by such an appearance of disinterestedness to the other parts of the aflidavit, to derive some advaiitage from the possession of the goods, or to induce captors to employ as their agent in other cases a person who had shewn such liberality in his zeal to s' itself happen, he legal limited ? » is co:n- Grassie irge for ule that ne with ts merit (hs, and le mer- d to rc- rthwith cording COURT OF VICE.ADMIRx\LTY. The Bermuda. Judgment. — Dr. Crolcc. rpHE question for the decision of \\\o Court, arises upo.i a petition, given in by Mr. Brenton Llnlli- hurton, the D.pntv to the Tna urer of Greenwich Hospital, in which he states : " That three mouths have elap.ed, since M ssrs. ilartshorne and Bufigs, as agents for his Majsfr. ship Bermuda, have made a distrihutio ', accoiding fo law, of the prize ships Feims and Charles, and tlie pejitioner has called on them to pa\ over the unclaimed shares to him, to be remitted to Ihe treasurer of the said hospital. " T hat in aojusfiiig the acf ouuts of the said prize vessels, it appears that Messrs. Hartshorne and Boggs claim to retain in tlieir hands the sum of forty-five pounds and two-pence— being the share to which one Owen Cotton, who was the captain's clerk of his Majesty's said ship, is entitled to receive of the neat proceeds of said prizes. That the said agents have produced to the petitioner, as a voucher for retaining the same, an attachment, issued pursuant to a law of this province, out of his Majesty's Supreme Court, whereby the property of the said Owen Cotton, as an absent or absconding debtor, has been attached in their hands. " That the petitioner does not conceive the said attachment as a voucher authorised by the Prize Act, and prays that they may be compelled, by the process of this Court, to pay the same to the petitioner, for the use of His Majesty's said hospital, as the law directs." To this petition an answer, and counter-petition has been given by Lawrence Hartshorne aud Thofnas 231 Mai/ 8tli, 1811. Case npnn a Pf- titioii (hjiii the Dopiily ti) llie TiCKiirer of G''('I|Mic|| 1J(,5. pit^il, ii;;:iiilst tlie I'rize Agents of tlic lierimida, for ccrtiiiii iin- cliii lied sli;ires of Prize ."\Ioiipy (Uie 10 till' IIos- pilnl Tlie facts are all statoil in tlie sentence. ^ S32 CASES DETERMINED IN THE 1811. Th^Bnnn^ ^,^^,^ ^, ^^^^^^ ^^^ ^.^ Majest/i ship 5.mu^a ; jtfavath. slating, "That the memorialists are agt'nts for His Majesty's said ship Bermuda, respecting two prize Bhips, the Venus and the Charles, that Oxun Cotton clerk to the captain of His Majesty's said ship was en- titled to the sumof ^r,.Os.^^. for his share of said pnze vessels, which has been attached in the peti- tioners* hands by virtue of a process issued out of His Majesl/s Supreme Court, under a law of this province, at the suit of William Duffus. " That upon the petitioners settling the accounts of said prizes, with the deputy to the treasurer of Greenwich Hospital, he claims to receive for said hospital, from your petitioners, the said sum of forty, five pounds two pence three farthings, as the un- claimed share of the said Owen Cotton, and refuses to receive from the petitioners the said attachment, as a voucher to justify them in the payment of «aid money to the creditors of the said Owen Cotton. Ihat by a recent decision of said Supreme Court, it has been determined that money can be attached in the hands of prize agents, at the suit of the creditors ot the person entitled to receive the same ; and the said miliam Duffus, is proceeding against the peti- tioners, to compel them to pay him the share of said Uwen Cotton's prize, in discharge of hi=. debt, which he alledges to be due to him from the said Owen Cotton—ihe petitioners therefore humbly pray that they may not be compelled to pay said money over to Greenwich Hospital ; and that the said voucher may be received as sufficient to discharge them from the itaT" "^ *^^ *^'^"*^ treasurer of Greenwich Hos, It is admitted by Messrs. Hartshorne and Bogies, that, as agents for the ship Bermuda, they have in fheir baodg the sum demanded, being the sharp of Bermuda : ts for His two prize en Cotton, lip was en> ire of said the pcti> ed out of .w of this I accounts asurer of for said of forty- the uii- d refuses achinent, t of said Cotton. IJourt, it iched in ireditors and the the peti- of said ;, which d Owen ay that over to ler may <>m the h Hos- lave in larp of Mat) m, 1811. COURT OF VICE-ADMIRALTY. 333 certain prizes to which Owen Cotton, clerk to the The Bermub*. captain of the said vessel, is entitled. They do not deny that three months have elapsed since they made distribution, and that they are therefore liable to be called upon to pay over the unclaimed shares to the deputy of Greenwich Hospital. But they claim to retain in their hands these shares belonging to Owen Cotton, because they have been attached under a law of this province ; and they have produced this at- tachment, as it is called, somewhat impropi riy, as a voucher for retainina: the same, which the deputy treasurer refuses to receive as such, and prays a mo- nition to compel payment. The whole question is, therefore, reduced to a single point. It is stated in the answer, that " by a recent de- cision of the Supreme Court of this province, it has been determined that money may be attached in the hands of prize agents, at the suit of persons entitled to receive the same," and many of the arguments of the counsel at the bar were founded upon the suppo- sition of a case in which money had been paid under a judgment of that Court : what might have been the legal effect of an actual payment made under that authority, upon such an application against the agent, or against the creditor who had received prize- money under it, the Court has not at present to in^ quire. It has only to determine upon the facts stated in the' petition and answer, namely, that the money has been attached without any judgment obtained, or payment made, thereup on. Neither has jt to decide upon the validity of the attachment in itself, as between the creditor and the ^gent. That is a question which affects other parties and belongs to other tribunals. The only (juestion here is, how far it is a voucher to the accounts of the ^gent to j^8tify the retention of Cotton's share. 4 ifl i ih ■ 11 1. ri: , i I' * 234 Til' Pi n woA. CASES DETERMINED IN THE A;, Iblt. _ As a matfor indeed rollaferal to the main point, a« , 'av.rg- (urm..d the substance of the greater part of 1)^ nr^umrnts at the b.r, and as tending greatly to clut.oale the princ ipal question, it maj. not be ini- proper to roi.sider the nature and eff cts of the pro. ce.^ .tself ^vh.eh is thus set up as a bar to the claim I appears that Owen Cotton being indebted to ^iWiam Duff,,, i„ the sum of ^i2. 15.. ^d. gave his • -;^ <'f '--d for that sum, on the 9th Se;L.6.^^ J80J, upon uhuh a declaration was filed, and served upon Messrs. Hartshorne aud ^.o^.,^ as the agents of Onen Cotton, alledj-ed to be an absent or abscond- in? deht^. according to the law of the province, in li.:.f,>lern., 1810. It has not been, and mdeed it cannot he, contended that the agents would have been protected against the claim of the hospital, i„ case ot a voluntary paj^ment made by them to the creditor, either b^. the note of hand, or by any dis- char^^e whu h the creditor could have given. Neither could they have been compelled to pav the creditor, J'fon ^Uh.n the Inn.ts of its jurisdiction .-provided that tb.v are applicable to the suhject matter, and that th due to him. The agent had paid a part of it to one Grant, as indorsee of an order given b^' Macdonald in favour of one Abraham Joseph upon Pasleij for his prize money. On shewing cause against a rule, why, on payment of what remained uni),iid to Grant to such persons as the Court should appoint, all further pro- ceedings should be staid, it was contended foi the plaintiff, that the payments to Grant couid not dis- charge the debt, since the order did not omplv wilh the directions of the act, an.l that it was ncv jssar\ to subject a letter of attorney to the restrictions ot that act, ci fortiori it was so with respect to an o.der which was a less solem;i instrument. The Court dis- charged the rule, and Chief Justice Eyre said, that there was a great deal of colour for the argu^r.ei.t which had been used respecting the nature of Jhe a..- thority under which these payments had been u'aJe. If the Le^,islalare thought fit to put a poxver of attor- ney tinder particular regulations, there is great rea- son to suppose that it was meant, that the agent could not he discharged hy amj thing less than a power of attorney." Now in this old act there were no words to direct how the money should he paid, nor was it conched in any negative form, yet it was held that the restrictions laid upon one form of instrument, n)ust, vi materia;, and from the reason of the act, be consi- dered as exclusive of every other instrument, liow much stronger is that conclusion under the present Prize Acts where exclusive v/oids are actually em- ployed ? Such exclusive restrictions and limitations then as ii i ItU'-M The BrRMVDA. CASES DETERMINED LV THE Ala mi. II? ii ^^- to the mode in which prize money is to be paid, having w H,i,, J'Pen introduced into His Majesty's ^rant under the act of parliament, the captors complyinjj: with those con- ditions ha\e a vested interest, which has frequently been enforced in the courts of common law, but if the conditions are not complied with, the grant cannot take effect, nor does any right whatever vest under it. If tlie sailor demands his money in person, or by such an order, it vests : if he does not he has no interest whatever. The right to prize, originally in the crown, not being vested out of it but according to the terms of the grant, still remains in the crown, or in the grantee of such residuary interest. This is Greenwich Hospital to whom the residuary interest is given by the same acts of parliament. By sect. 87, every agent within four months shall remit all unclaimed balances and shares, and all shares of run men to the treasurer of Greenwich Hospital. All shares are unclaimed which are not claimed according to the act, and the interest of the hospital is real, and not merely, through parly, for the benefit of the indi- vidual captors. It has, first, a beneficial possession, from the interest of the shares which are invested in government securities, and it has the ultimate pro- perty if they are not legally demanded, as it has ori- ginally in run men's shares, forming together a fund for the benefit of the hospital. In the case of Home against Lord Camden, 2 H. Black. 533, Lord Chief Justice Eijre said, that the different sections which give powers and impose duties upon agents, all respect sales in order to distribution, and the interest of Greenwich Hospital arising out of those sales. So that the hospital is considered as havmg an interest from the beginning. Here then is no suTyect matter for the law of the province to act upon. Prize monej is neither tht I COURT OF VICE-ADMIRALTY. .J^ods, c(Fects, or credits of the seamen, unless he de- mands it in person, or by such a power of attorney as is described. Not having so demanded it, it could not be liable to an attachment under that description, and the timehavin<^ now expired, without such legal demand, the interest of Greenwich Hospital becomes vested. But it was said by counsel, that the seaman might maintain an action against the agent, at the time the attachment issued, and therefore that the creditor representing his interests may maintain an action also. Now I doubt much whether the sailor himself could have brought an action for his prize mo- ney, until after he had demanded it in person, for his personal appearance, to identify him with the per- son described in the prize list, is necessary under the act; and as the rule^ of good pleading prove the law, a demand by the claimant and a refusal by the agent is always pleaded as a foundation for the action in suits in the common law courts against the prize agent, as appears in the case of Wetnyss v. Linzee, in Douglas, 310. If the party himself could not have brought an action the argument fails as to the credi- tor. His appearance in person could not have satis- fied the intention of the act. If the party had been here he certainly could not have transferred or assigned his right to prize money to the creditor in satisfaction of his debt, unless ac- cording to the regulations of the act. Nay more, if the party had been here himself at the time the at- tachment issued he could not have assigned it all, for no order whatever given by him here would then have been valid to authorise the receipt of prize money, by the express words of the Prize Act. Does the act of the province then make a transfer of rights to the cre- ditor which the party himself could not have done? H 241 Tlie Bermuda. May 8th, n ■(:■,?. '•Hi ■ 1 1 i iij m t f 1 i m ir r ' ''^^1 1 I \'fl J,. .. i Ji M Ml m 243 CASES DETERMINED IN THE The B».RMUD«. Mau 8th, 1811. f ^ \m , ,. h w The attachment is besides an order to the agent to detain the money and not to pay it over to Greenwich Hospital. But the party himself could make no such order. That privilege is confined to warrant officers.* Further as to this supposed representation; of the two modes of payment, the first is personal to the party, I do not see how this can be transferred to an- other, and the other regulations are directed to this very point, namely to ascertain how the sailor shall be represented. One only mode of constituting a representation is pointed out, by letter of attorney in the form prescribed. If these restrictions are exclu- »ive they must annihilate every other kind of repre- sentation, (except that of executors and administra- tors which is admitted and put under regulations) whether that representation arises by common law, by statute, or by act of the province. This property likewise is protected upon another ground.— It was admitted by the counsel for the agents, that money could not be attached if under the custody of the law, and whilst a suit is depending in the King's court. Several cases were cited to this effect. In particular the case of Coppel against Smith, and Grant against Howding, 4. T. R. 31». Money in one case attached, and, in the other, paid upon a judgment upon an attachment, were ad- judged to be paid again, because the money had been directed to be paid by the Court of King'* Bench, and therefore was a j udicial act. Yet it had not been attached in one case until after the master's allocatur, nor in the other until the day arrived for payment, so that the interest was completely vested, and nothing remained for the Court to decide. * U Geo. III. c. 72. sect. 83. May 8th, lUl. COURT OF VICE-.ADMIRALTY. 343 Prize money is under the custody of the King's TheB.HMun.. Court of Admiralty until it is actually demanded or paid to the parties. Until that moment the prize cause is still depending. This is evident because until that time the Court is open to any application from persons interested, and can make order there- upon, without instituting a fresh suit, which must necessarily be done if the original cause was out of Court. Until payment the judgment given is not effected and satisfied. Till that time all the parties are under the controul of the Court. How many regulations are there in the act, relating to the con- duct of the agents after final Judgment, and to the time of actual payment, all which it is the duty of the Court of Admiralty, by the directions of the Prize Act to enforce ? Here after final judgment the agent is to register his power of attorney, to exhibit his accounts of sales, in some cases to bring the proceeds into the registry, or to invest them under the directions of the Court. By the orders of this Court he is to make distribution, here he is to make up and verify his final accounts as the Court shall require, and under the direction of the Court to remit all unclaimed shares to Greenwich Hospital.— If property so situated is not under the custody of the King's Court of Admiralty until actual payment, I know not what property can be considered as in that situation ; nor do I know any case in which the courts of law have been held even to have concur- rent jurisdiction until the property is become abso- lute and vested by the Prize Act, either by a demand in person, or by an acknowledged power of attorney, neither of which have taken place in the present case. 2. As the sailor has no attachable goods or effecti, b2 N 244 Tho DlRMUDA, 3/"V 8th, mu f" I CASKS DKTOTIMINED IN THE so I think tliore is considerable strength in another ground which was so fully argued by His Majesty '$ Advocate, namely, that a prize agent is not either an attorney, factor, agent, or trustee, as intended and described by the act. The more general words " in whose hands or possession the same may he found" in the first clause, being conhned to such goods or eilccts as are exposed to view, or can be come at. They are indeed called agents, and are named by the parties, but they are certainly very different from the persons usually understood under that denomina- tion. They are in reality appointed by the Prize Act for certain special purposes. They are rather ofii- cers of tho Court than agents of the parties. To the Court of Admiralty they give security, and that not a security in each particular case, but a general secivrity for the due performance of their general duties. They arc under the controul and direction of the Court as of its proper authority, independent of any act, or motion of the captors. The parties have no controul over the property in their hands, they cannot take it out, or direct the disposal of it, but according to the restrictions of the act. Nor can they give any authority to him to retain it in his hands, after the expiration of the time limited ; and tliey are not agents for the captors only, but for all other persons interested— they are agents as well for Greenwich Hospital as for the sailors. 3. I think there is some weight likewise in the observation made by the Solicitor General, that a sailor, coming here, for a short time, in His Ma- jesty's service, can scarcely be the person intended by the act, under the description of an absent or ab- sconding debtor— to be absent, or io abscond, implies a previous residence, and how can a person be con- sidered as a resident who accidentally visits this mes. COURT OF VICE-ADMIRALTY. harbour in one of His Majesty's ships, and has no- thing like a domicil within the province ? In the cases of Sill v. Boswick, and Hunter v. Potts, which were cited at the bar, provincial laws were held not to have a complete operation for the benefit of persons who went into a colony merely to take advantage of those laws; how then shall such a temporary and involuntary visit give them cflect to any person's detriment ? 2. I have hitherto confined my observations to the words of the province act itself, and have shewn that it does not apply to prize money, because it is not the property there described, and because neither the prize-agent, nor the sailor himself, are the persons against whom it is directed. I proceed now to another point, that such cannot be the true interpretation of the province act, be- cause, if it were, the act ifsclf would be repugnant to the prize acts, since enacted, » ul therefore so far illegal and void. It is an admitted principle of law, and was stated as such by Lord Mansfield* that the colonies take all the common and statute law of llngland. which is applicable to their state and condition. The regu- lations in the Prize Act extend expressly to the colo- nies, and since all the right which captors have in prize is created by them, in conjunction with the proclamation, these title deeds must be taken with all their limitations. Either the whole is applicable, or no part. It cannot be said we will take the proclamation and the statutes as they give prize to the captors, but we will reject the conditions under which it is given. By the 7 and 8 William III. c. 22. § 9. " All laws in any of the plantations, which are repugnant to any laws to be made in * Lindo V. Rodney, ■^Douglas 6 17. 345 The Di KMtioA. Mmi 8:ti, liill. ! i ^Jb j. W^L 246 The Dermud* CASES DETERMINED IN THE Nay Sth, Itlll. Great Britain, so far as such Jaw shall relate to, and mention, the said plantations, are illegal, null' and void, to all intents and purposes." If then the pro- vince law is repugnant to the restrictions imposed by the British act, it is so far illegal and void. Con- sidering it in another point of view, and giving it every possible validity, still the British act must be allowed to be of equal authority, and then the pro- vince act must be taken to be substantially repealed, so far as it is repugnant to the British act, which is of a later date, upon the universal maxim, quod leges posteriores priores contrarias abrogant. If the province act is to be construed as is con- tended, and an attachment lies in this case, it is evidently repugnant to the Prize Act. That act di- rects the money to be paid to the party in person, or to an attorney, in a certain mode appointed ; and if not so demanded and paid, that it shall go to Greenwich Hospital ; the act of the province would direct, that although it had not been so demanded, yet It should not go to Greenwich Hospital, but to any creditor who chose to attach it, and that noble charity would be deprived of a residuary interest vested in it by the same statutes under which the captors themselves derive their right of property. The Prize Act limits the right of transfer to jae ^orm of an order ; the province act would extend it to promissory notes, to common bills of exchange, nay to every instrument and mode by which credit may be given, and debts contracted. If such is the true construction of the provincial act, a statute may be good so far as it gives an interest, but void so far as It restricts it; a grant made by the Crown in 1805 call be extended beyond its express terms and plain conditions, by a provincial act, passed in 1761, be- fore the property itself was created ; and an act of COURT OF VICE-ADMIRALTY. 247 May 8tb, 18U. parliament, extending to the province, passed in the Th« Bermvd 45th year of the King, can be virtually repealed in some of its most material clauses, by an act of the province, passed in the first year of the same reign. This repugnancy is not only to the express words of the act, but still more against its spirit and inten- tion. These restrictions were introduced partly to discourage desertion, and partly for the purpose of preventing sailors from being defrauded of their prize money, by their executing powers of attorney and other instruments, improvidently, and thereby transferring not only their present but their future interest—With respect to the first, the prize list in- deed ascertained, they were not run men at the time of delivery, but as their share was equally forfeited by a subsequent desertion, the order was required to be signed by the captain, or must contain a certificate of the sailor's discharge. If an attachment can be sued out upon any instrument, executed without any of these precautions, or for any debt, there is no se- curity that run men may not receive their shares, to the encouragement of desertion and the injury of the naval service. Frauds were often practised by im- postors who personated sailors, and received their prize money. This was guarded against by compel- ling them to appear in person to be checked with the prize list, or to be certified by their captain. The same precautions were a protection against forgeries, and frauds in obtaining orders, and the villanies nrac- tised upon unthinking sailors, in cheating them by a ticipation of their future prize money, whose value was unknown, was in some measure prevented by the necessity of specifying the prizes, and other circum- stances. Such was the series of well-considered regulations, adopted gradually, as experience suggested their ne* !lf y- i I r..r. i 248 The BiRMnDji CASES DETKRiMl ,.:i) IN THE Mat/ 8ih, . __ ceasity, for these wise mid benevolent purposes. Jlut if an attachment can be sued out b^' any creditor, real or pretended, upon any instrument or security, or for any debt whatever, the whole fabric falls to the ground ; is wid that the Supreme Court will be ( .;reme?" rutious, and will so shape its proreed- inp^s as to guard against fraud, lie it so, it is the duty of every court of justice. IJut it has not means equal to those prescribed by the act. All its precau- tions are ineffectual, in compiirison to those of the Prize Act. Under the Prize Act such are the regulations (hat every point must be proved, and in a mode which scarcely leaves a possibility of fraud, to the satisfaction of the party who has to pay tlie money. Unless those regulations are pursued, the agent is not discharged, and it is therefore made his interest to see that they arc observed bond fide. But if prize- money can be attached in his hands, and such process or judgment upon it is a legal discharge, he has no interest in resisting it. He may indeed be comnellcd to appear, but cold and lifeless will be the defence where victory or defeat arc equally indifferent. It is said the party may come in under the province law, and set aside the judgment within three years, but how IS a poor sailor, who may never revisit these shores, to avail himself of an expensive procceaino. at law to recover a poor pittance of a few pounds, and this right of a re-hearing does not extend to Greenwich Hospital, since it is confined by the act, to the debtor himself. Since then the proceedings in the provin- cial courts cannot afford an equal security against the mischiefs intended to he remedied, the process of attachment would set aside all the excellent regula- tions of the Prize Act, without substituting an equi- valent in their place, and would leave His Majesty's service, the sailor, the agent, and the hospital, naked. COURT OF VICE-ADMIRALTY. and exposed to every species of fraud and imposition. Rut after all, the question is not whether the precau- tions used by the provincial courts are equally eliica- cious with those of the Prize Act, but whether a law of the province, made long before, is to be so inter- preted as to make it abolish those regulations, and to leave it to the courts of law to substitute others iu their place. If an attachment lies, it overturns all those provi- sions which are so advantageous to the seaman. On the other hand it is only an addilUmal remcdij to the creditor. It is an established maxim, quod lex citius tolerarc vult privatum damnum, quam publicum nudum. It is better that a creditor, who had other means of recovering his debt, having neglected to use those means, should be deprived of this further re- medy, (accumulated remedies for the benefit of those who have negl-cted to use due legal diligence, not being favoured in law,) than that a door should bo open to fraud and imposition, that a class of men, to whose bravery and exertions the British empire, and the colonies in particular, owe tlieir existence and in- dependence, should be liable to be robbed of the just reward of their meritorious services, to the great injury of the public and that the British legisla- ture should be defeated in an important object, which has occupied so much of its care and attention. With every deference to the very respectable gen- tlemen Nvho preside in the provincial courts, after the most diligent examination, and the maturest deliber- ation which I h ve been able to apply to this sub- ject, for the reasons which I have stated, I cannot be convinced that prize money ran legally be attached, under the act of the province in the hands of prize agents, and that a decision to the contrary, can be maintained in law. Diffident as I must naturally feel Till' BlHUVUA. Mi>v Oili, iUtt. m < J ' 'i .Mii 960 The OiAMtiD* CASES DETERMINED IN TJ(E ^'ov "til, iau. _^ in these sentiments, from their not coinciding wi(h what 1 understand to be the opinion of those respectable gentlemen. I cannot but think that they receive some support from an argument which is not unfrequcnt m the mouths of some of the most learned sages of the law, against the legality of an^ actions or other legal proceedings— //m/ they are not founded in me- cedent. The law of the province has now been in force half a century; many and frequent have been the complaints of losses by the debts of sailors ; prize money to an immense amount has been from time (o time here deposited, and yd neither the keenness of creditors, nor the ingenuity of the gentlemen of the profession, have, till very lately, discovered this mode of proceeding; as a new and unprecedented practice it is at least fairly open to some discussion. 3. But however valid the attachment may be as between the parties, it does not follow that it is binding upon Greenwich Hospital. It is res inter alios acta qu(B aliin nocere non debet. The hospital 19 not a party in, or privy to, that suit. It :cannot intervene in it, and it is excluded from a re-hearing by the province act, which limits that privilege to the absent or absconding debtor. If an attachment, taken out by a creditor against the agent would be a bar to the claim of the hospi- tal. It would be deprived of its rights without an opportunity of defence. If an attachment, not fol- lowed up by a judgment, would be a bar, agents, by fraudulently procuring process to be sued out, by fictitious or small creditors, may retain the money in their own hands; as in this case, where the demand of the creditor is much less than the money in the bands of the agent. 2. By the words of the province act, this process, and judgmeut of law upon it, are declared to be a f5| A/rt» Bill, lUil. COURT OF VICE-ADMIRALTY. 39 1 full acquittal and di«clmrgc of the agent from all T..n„M.„,. demands by ]m principal, his executors, or adniinis- trators ; but it is not declared to be a discharge of the agent against the demands of any other persons and of course not against the claims of Grtenwich Hospital. 3. The extensive view which I have thought it necessary to take of the validity and effects of the attachment, and which has led me into an examina- tion of the nature of prize property, and of His Majesty's proclamation, and the prize acts, and the inferences which I have deduced from them, stron-ly prove that the direction of the act to agents, respect- ing their payments and accounts, must be literally adhered to. If those directions are decisive, I know of no authority in this Court which can set them aside, or deviate from their obvious meaning. Thi. Court cannot admit this attachment as a voucher if it IS not allowed by the act. The words of the Prize Act are these (45 Geo. Ill c. /2, sect. 84.) "And be it further enacted. That no deduction shall be allowed, on any account, in the payments of unclaimed or forfeited shares and ba- lances paid over to the Treasurer of Greenwich Hos- pital, or his deputy, for any sums not appearing upon the prize hst of distribution, to have been paid thereon and acknowledged, unless satisfactory vouchers from the parties or their lawful attorney, are pro- duced for the same." ^ To know what are satisfactory vouchers from the parties or from their lawful attorney, we must look at the other parts of the acts. The only voucher from the party directed by the act, except in the case of a personal demand, the only mode by which a lawful attorney can be appointed, is an order in th« form there directed. No other vouchers are autUo- ( 11 .-! 1 1 tiB ttjf \ ^SKk if I r '^^^^1 f 'I' i i ■ f 253 The BkXMiiBA, May 8tli, mil. CASES DETERMINED IN THE rised under the prize acts. Since then the note of hand given by Owen Cotton, and the dechiration founded upon it, do not come under that description • since they are neither vouchers for the sums appear- ing upon the prize list of distribution to have been paid thereon and acknowledged ; since they are not such satisfactory vouchers from the parties, or their lawful attornies, as are legalised by the act, they are excluded by the express words of this section, and no deduction can be allowed on that account. So impe- rative are the words of the act, and so clear in their meaning, that nothing is left to the discretion of the Court ; in the allowance of these accounts it has little more than a ministerial power. I decree a monition against Messrs. Hartshorne and Bogg,, as agents for His Majesty's ship Bermuda, to pay the sum of forty-five pounds and two pence three farthings, being Owen Cotton's share of certain prizes, ed for th(,' service of the passengers, and givmg her no particuhir privilege that could con- st.tnte a Freuc/i ehara-ter. As *o her being contra- band of war, and going to an enemy's port for sale there is no evidence whatever of that fact, as in the case of the JJnitui, and the ship herself is by uo means ecpiipt or calculated for the measure. SKNTiiNCE.— Dr. Crokc. Tiie Tamaa/ima/i, S/ddd^, was a brig taken by the 3reiumpus, Hawker, bound on a voyage from JSew \ork (() Bourdcmu: She had no cargo, and there were iifty Fr,„ck passengers. A claim wa. Kjvon by J.Ii. Skid'j ' The Tamaaiimah. July 29tli, 1311. Frenc/i colonies. The Fre?ic/t consul describes them to be French passenj^ers, pai t of whom were in tlie service of the governnmd, and the others re- fii,ii-..'es from Si. Domingo and Cuba. Jt (h)es not nppear by whom their passaj^e was to be paid, wlu-lher by themselves, or the French go- vernment, but they saih'd under the particular pro- tection of the French government, afforded tliem in a special passport from the consul general at New York. ]n this passport " all con)manders of squa- drons, vessels, and privateers, are requested to grant their succour and protection to this vessel, and to protect its entrance into Bourdeaux, or any other port of France, i'refects of departments, and other civil local officers, are requested to admit the said brig, laden with passengers, and to permit her re- turn." If tliese persons were going home, after the cai)i- tulation of a French colony, upon the terms of the surrender, they, and a vessel hired for the purpose, would be protected as a sort of cartel, but this is not alledged. The master only states his vessel as a common passage boat, and the passengers picked up be knows not where. It has been decided in several cases (Friendship, Rob. VI. 420.) that carrying soldiers and sailors \o France, though not regular corps, and not intended for any particular service, is engaging in a trade of a contraband nature. There is no proof that many of these passengers were not of that description. Under the present government of France, where the whole body of subjects is under con.scrij)tion, every man is a soldier or a sailor. Every man capable of bear- ing arms on board this vessel, might, and probably would be seized immediately upon his arrival in France, and sent to fight against Great Britain or COURT OF VICE-ADMIRALTY. f)er allies. Thovgh a few strag-glin^, or accidental persons might innocently be permitted on board a general passage vessel, yet where a vessel is em- ployed for that purpose only, and carries a whole cargo of the enemy's snbjects, who may immediately be hos ilely employed against ns. such a cargo can scarce.y be considered as of an innocent nature especially when sailing under the peculiar protec- tion and passport of the French government In the cases above stated, the vessels were goin- to an open port, without any mixture of blockade" Jf that was the case here, it might be a question of some mcety to determine how far persons, not pro- fessedly of the military state might come under the principles of those cases. Very different is the case here. How far it might render a vessel liable to forfeiture, if going to an open port, is another question Jn this case, the port being under a ri- gorous blockade, the only question is, how far the employment in which the vessel is engaged, is of a favourable nature, and such as to form an excep- tion to the strict rules of blockade. Whatever doubt there might be in the other case, in this there can be none. A vessel hired to carry home the enemy's subjects, who compose the strength of his country and form his fleets and armies, and whose import- ance to him is manifested by the peculiar protec- tion granted them by the govert.ment itself, is a ma- terial servicr performed to the enemy, and as such certainly cannot afford to a neutral any plea which can justify the breach of a blockade 959 The Tamaahmad; J\dy 29t»i ' s 2 260 CASES DETERMINED IN THE srp^^m, Ti,e New Orleans Packet, /ilrhard T. Harris, IVJuNter. I 'I i '! The ordfM in council of tli« 9filli of April, 1809, not rc- vokod l)v tiip DiikfofCadiiri'a letter of. iMg-j, 1810. Ju DC M E N T. — D r . Croke. nnms vessel salletl from America, with a cargo of -■- i)roviHions to Gihrullur ; from thence to Bour- dcanx, wliere she took on hoard a cargo of wine, and was captured upon her return to the United Stales. It is not necessary at present to consider the questi decrees of Ihrlin and Mdan were repealed, whereupon he determined to go to Bourdeuiuv. It is not argued that this letter niisled the master, and that it amounted to a justification only, under the plea oi his having been deceived, and that he had gone to Bourddmx undt;r an involuntary, and therefore excusable, error, but a broader ground has been taken. It is said, " that these decrees have been actually revoked, and therefore, that the British Orders in Council, being merely retaliatory, and co-existont with their decrees, have, de facto, ceased ; that the revocation of the decrees is proved, not only by that letter, but likewise by the fact that this very vessel had been seized at Bourdeaux, but COURT OF VICE.ADMIRALTY. wns afterwards ]|l>orak.d, upon l.onds, which are said to have been .si„re cancellrd. It was besides aryned that the Orders in Co.n.cil having imposed a blockade on the french coasts, by the rules of the Courts of Admiralty, it cannot, in justice, be valid, without an effectual force.to suppc.rt it, which does not appear to have been the case with the port of Bourdean^; that all blockades are of an odious na- nire. and that this, which extends to all the ports of trance ,s perfectly new. and a violent restriction of neutral commerce, and therefore, if at alljustijiahle It ought not to be inforced too rigidly ; that pro- perty ought not to be condemned under' it, but upon the clearest proof of its being in operation, and that 1 any doubt arises, whether it is in force or not, the claimants are intitled to the most liberal considera- tion and, in case of uncertainty upon that head, the scale ofjuslice should preponderate in their favour." It was incumbent upon the claimants to have ]).oved all the facts upon which they have rested their defence They have produced no absolute Invocation of the Fmich decrees. 'J^he letter of the Ducde Cadore is condUwnal only, that the decrees should cease to operate on the 1st of November, 1810, provided that ^' jtlnghmd shouhl abandon her Orders HI Council, and her new principle of blockade." Eng- laud has abandoned neither, the condition has not been complied with, and therefore the revocation is void, by the very terms of it. This was the under- standing of the 7i/v/M Government, as appears in ns declaration to the American ambassador, and, still more, from its conduct. The British Govern- •neiU has publicly professed that it would recall the Orders m Council whenever the French decrees sliould be revoked. A year has elapsed since the Due de Cadore's letter was written, yet the British S6l Tlie NkwOklmans Packet. Sip . 30th, 1811. ! » : :i 262 The I'ai.ket. CASES DETEIIMINED IN THE Sept.MtU, liiU. Government lias not revoked the Orders in Conncif, wlucli it was bound in honour to have done, and which, therefore, it certainly would have done, if it Iiad hft'H satiNlied that the decrees were annnlled The document itself, therefore, and the construction put upon it l>y the nrilis/i government, and eNJueed by its conduct, shrw clearly, that tl.i> Jicrlm and Miiau decrees were not revoked at tlie time when this vessel was at Jiourdeuux'. The circumstances which happened to this vessel in rrance, s" '\u m,m beinj. favourable to the claim- ant, prove clearly, that llu- decrees were then in full forte. It is.admitte ^. I ^/ 0% /} °^ V v: /A 7 1.0 I.I 1.25 [riifi IIIIIM 2.2 1!^ lU Photographic Sciences Corporation "^ IAS ilM 1.8 U III 1.6 ,-\ ;V ^9) V % NJ :\ \ 6"^ «^ ^^L 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 964 CASES DETERMINED IN THE The NewOrleani Packet Sept. 30th, lUll. French decrees should have been proved to be really revoked. I cannot agree with the learned counsel, that any of the principles Much have been admitted, respect- ing blockade, have any application to this case. The word " Blockade" has indeed somehow crept into the discussion, relating to these orders in council, but the restriction imposed by them is, in reality, of a very different description ; they do not constitute, properly speaking, a blockade, but a measure entirely sui generis. A blockade is confined to particular ports, is usually of a military nature, and it is ad- mitted, that it cannot be extended to ports, w here no actual investment is established, y/iis order is a general interdict of all commerce with the French nation, which, upon the very face (»f it, cannot be executed in the manner required in blockade, since such an investment would amount to a complete siege of all the dominions of that country. It is ab- surd, therefore, to think of applying the rules of one kind of measure, to another of a nature essentially different, and which it is impossible, in that case, to comply with. It may not be improper, by way of answer to some observations which have been made in argument, to consider a little more the real nature and foundation of these orders in council. When they are said to be retaliatory, it is indeed true, but that expression does not go far enough, they are, strictly speaking, defensive. They bear no resem- blance to any hostile proceedings, ever adopted by any nation whatever They have no sort of analogy to the blockade of the French coast by England and Holland, because that was not in consequence of any antecedent conduct on the part of France, but an unjustifiable extention of the common law of blockade. It is a new and unheard-of iomedy, COURT OF VICE-ADMIRALTV. applied to anew and unheard-of disorder; an extra- ordinary mode of defence, against a mode of attack equally extmordinary, and is therefore justifiable un- der every principle of the law of nations. It may be laid down as a general rule, that whenever one nation employs means of whatever nature they may be, to ruin another nation, that nation has a perfect right to defend itself against those means, whatever the effects may be to other countries. If new and un- heard-of expedients are employed for that purpose, it is probable that Jievv and unheard-of defensive measures must be resorted to, but they are not the less lawful because they were never before prac- tised. , No one can doubt but that the Berlin and Milan decrees were intended to ruin Great Britain, and to pave the way for its conquest. This was openly professed in various French documents, issuing from the French government. It was universally known, that "Commerce is the principal source of the great- ness, the powor,and even the safety of England"* It was resolved, therefore, to annihilate her commerce, by prohibiting all trade and correspondence with the British dominions, or in English merchandize. This constituted what was truly stiled "an unprece- dented system of warfare." Was Great Britain to sit quiet till she was deprived of all her resources, and compelled to submit to the enemy? The orders in council were issued, imposing a similar blockade upon all the territories of France, " to compel the enemy to recall those orders, or to induce neutral nations to interpose with effect, to obtain their revo- cation." If any prejudice results from them to other nations, it is no injury, for self-defence is the inde- feasable right of mankind. * Vattel. £85 The NkwOrleani Packet. Sept.SOtb, 1811. 4 }( I- I i wgferfciia 2m CASES DETERMINED IN THE The NewOrleaws Packet. The United States of America, of all countries, have the least Hi,^ht to complain, of any inconveni- ences which they may suHer from them ; they give all the effect in their power to the.se imjnst decrees. No vessels sailed from (hat country without certili- rates from their own magistrates, countersigned by French ConsuLs that no part of the cargo was Emr- iis/t merchandize; thus they actually co-operated with the enemy in his plans for the reduction of this country. We hear much inl. 30llj, laii. Cargo brought from a block- aded port by land, and «bi|>- pcd in an open port, not con- fiscable. Order 2d Oct, 1807, revoked. Of 31 May, 1809, not revoketl. member, ISIO, by the director of the customs at £ourdeaux, if these decrees had been notoriously repealed from the 1st of November} What must have been the conduct oi the American master, under luch an injury ? An instant demand of restitution, with costs and damages from the tribunals. That any remonstrance to government should have been requisite, any application depending there for a con- siderable time, and the property restored more than a month after- wards, on bond to stand adjudication, on a sul)ject wliicli Mr. Russcl justly describes in terms, to be an act osteiisil)iy proving the conti- nued operation of the decrees ; and that bond not given u|) till the mouth of Ju/y, 1811, by an Act of the Mtate, excrci>mg its preroga- tive, and not by any Act of the tribunals, executing a known law, are a series of facts, which prove decisively two things: — One, that the Due de Cadore's letter was not in itself a revocation of the French decrees; and, secondly, that no other revocation was puhlicly knowi^." 270 CASES DETERMINED IN THE TlliiMA* Wilson. Sept sothf 1811. Other side, confined himself chiefly to the objectionB under the order of the -iOth jlpriL This ship, it was true, had proceeded from Philudelplna for Tonnivgcn, with a cargo of colonial produce, and after having touched at Heligoland, arrived tliere with the avowed intention of receiving goods from Hamburgh, by land, which she could not have received hy water, vvitiiout a breach of the blockade of the Elhe.—'lh-dX such trade was allow- able, and the consignment of the cargo to a Ham- hurgh mevch-Ani equally so.--- fhat there were several portions of the cargo brought to Hamburgh, from other towns in Europe, in order to be forwarded from thence to Tonningen for sliipment to America, If these were neutral property, of wiiich there could be no doubt, they must, at all events, be restored. No part of the cargo could have been transported to Tonningenhy water, the usual and accustomed trade being (routined to land carriage, for the express pur- pose of avoiding the blockade; and this fact would appear by a reference to the letters and accounts found on board the ship, and made exhibits in the cause With respect to the point of property, nearly the whole of the cargo was on freight, and if any confidence could be placed in her papers, the whole of it must be considered as American. Judgment.- -Dr. Crake. A claim has been given by the master, for the ship, on behalf of Daniel Williams Cox, of Phila- delftJiia; and for the cargo, as belonging to a num- ber of persons, about thirty-four, all American citizens. She loaded in Mai/, 18 1 0, at Philadelphia, sailed in June, and arrived off Heligoland, on the 22d of Jul//. The next day she reached Tonningen ; lay there two mouths, and theu proceeded up the COURT OF yiCE-ADMIRALTY. River Eyder, to Rheinshurg, where she remained four months. She then returned to Tonningen, took in her present cargo, and sailed from thence, upon the 21st Maif, 1811, bound upon her present voyaije to Philadelphia. In lier way, she stopped agniti at Jhligoland, and was afterwards captured by tho Alalanta. The captors have opposed the restitution, or have prayed the condemnation of this vessel and cargo, upon two grounds. The want of proof of the p'i^o' perty, and the breach of certain orders in council. Upon the first i)oint, the Court has little diffi- culty. It is allowed by all parties, that there is full proof of the ownership of the vessel; and the claimant's counsel admits, that the evidence of the property, in the numerous shipments of the cargo, is defective, since the master cannot swear to them. The vessel therefore is a proper subject for restitu- tion, and the cargo for further proof, unless they should be liable to condemnation, upon other grounds. 2. Three different orders in council are alledged by the captors, to have been violated. Of these, the first of the 2d of October, 1807, by which His Majesty judged it expedient to direct that the most rigorous blockade should be esta- blished at the entrance of the River Bidder, is quite out of the question; for it was discontinued by general orders from the Admiralty, on the 13th of July, 180», a year before this vessel entered the river. The next order in council, is certainly now in full force. It was made upon the 31st of May, 1809, and directs that the trade, to and from Heligoland, shall be confined to Britis/i ships ; and it is ordered, " That no foreign vessel shall enter into the port, harbour, or road, Ijing between the island of Ileli- 271 The TllOMAJ Wilson. Sept. notli, lUll. it ;] % [ ft ^ H^l i ^H \ ] i'^^^^l \] . 1 1 I'n^^l W ' ru^l f ^ 1 t 'f'' 'i^l r'il^fl t '''•liifl 1 1 t 2 ^^^1 1 E ^^^^1 ! _fl I'tJ^IHHI 1 r: j^^I - 1 ■ li ' S^^^l ' ! 'll^^l ' ' 1 M ill yJI S79 CASES DETEIIMINED IN THE The Thomas Wilson. Sept. 3()tli, 1811. goland, and Sandi/ Island, and the shoals of the said islands respectively, and commonly called, or known by the names of the North Haven and the iSouth Haven, under any pretence whatever; and that no goods, wares, or merchandize, whatsoever, shall be in any manner pnt on shore, or transhipped," One branch of this order does not apply to the present case, as it is not alledged that any part of the carfo was laniied, or transhipped. Bnt it is said, that the vessel has broken the order, by having entered the port, harbour, or road, of that island, either upon the outward or the return voyage. Let lis examine the evidence to this fact. The master was directed by his owners, to touch at Heligoland, for orders from his agent. On their voyage out, the log-book states, that on the 23d of June, at 3 p. m. they made UeUgoland, lay off* and on till daylight, then bore away for the river Et^der. The master states, that a boat was sent on shore, and returned with orders, from the agent of the owners, to proceed immediately to Tonmngen, whichhe did. On their return voyage, they lay too, oS Heligoland, for two hours, during which time they landed a Mr. Spcrry, and some other German passengers, who had taken their passage thither. Now, not to men- tion thai there is not a particle of proof that the vessel entered into any port of the island, or any part of the prohibited ground ; and that there is the clearest proof that no manner of commerce, with that island, was ever thought of; and that theraeye communica- tion with the agent, for the purpose of ascertain- ing the existence of blockades, in the neighbouring ports, or of landing passengers, neither in fact, or in law, can constitute a breach of these orders ; there is the eviilence of local circumstances, to shew that no violation was committed. The vessel was COURT OF VICE-ADMIRALTY. boarded l,y.a l,„at from the Ihitish cnstoni-house, and paid tijc Jiyht iluty. \i the vessel had broken the order, a seizure would certaiidy have been made. rhcit; was also an English ship of war Iving at Heligoland, wiiich sufltred them to proceed without exaii.mation, which shews that she had not entered into the unhnvful places. These facts are ascer- tiuiiel by a disinterested witness, Frederics, the |)assenger; whostales them, and draws from them the sauje couelusion which the Court must form, " that tiiey had not entered any blockaded, or prohibiied I)ort." J proceed now to the third order in council, which hiis been said to have been broken; that of the 2(;th of April, 1809, by which all ports and places, under the g(,rerument of France, were placed in a stale of blockade. 1'his vessel was only at Tonningen, and in the River Eijder, which were neither of them within the compass of any blockading order: but a great part, nearly the whole of the cargo, was sent from Ham- burglt. It will be necessary, therefore, to consider the national character of that place, the fact of the transportation of the goods from thence, and the legal consequences which will attach upon it. The northern part of Germany was, for a long tmie, in a very fluctuating stale : countries and cities, rivers, and their banks, were successively occupied and abandoned by the enemy. It was not the wish of the British government to distress neutral places, or to restrict neutral commerce, more than was necessary for the purpose of coun- tei acting the designs and proceedings of the enemy. It issued various orders, altered and repealed them, according to the temporary and changeable state of affau's, till at length the present order was made, by T ftfl^ TliUMAI Wilson. Sti>t. 30ih, mil. ' ■• li f :!l| «74 CASKS DrTIvllMINni) IN THE The TiinwAi Vll.siiN. Sept. .JOth, lUU. 'wliich tlir navitrntion of lliat part of tlu; worlil, as far as wv aro courcrnnl, has hrcii for soiiu' time 8«;itlo«l. Afirr liiniliii:; tlir partinilur line of hloj'kado, to tin; Kivcr llins, it rxlciids it jj;<'iirrally to all other ports and plact's under the p)vernnit'nt of Franre. I'he roniplete occupation of JLimhin^h by tilt; French lrooj).s, has tinally fixed the fatti of that country. The entire possession of that city hy the French, is iniitlcr of <;(Mieral notoriety, and ther* is ahundnnce of «,.tM:iru; proof of il, to ho foiuid in the jiresent case. Jm'oui docun>ents produced from the ship's papers, it is |)rovcd that llainhuigh \\,\^ annexed to the French empire, and heeame a r from liu(maparte,\\n\\ no neutral consul shoidd remain jit Jhnnhiiroh, till his commission had been renewed. There aie licences to trade there from him. (ioods were permitted to he iniported into this city, under decrees sij-ued at l*aris. Jn short, there is proof not ouIn that this place was, in point ol fonn, incor- porated into the French J'^mpire, hut there is ample testimony, that every kind of s<»ver<>igiity m as actu- ally there exercised. liavinuuinoen, As the cases of ship and carico may staud upcui diflerent grouiuls, I shall tirst consider the cargo. Jo s«'i hh»ekaded port, to a neijrhhonriiifr port, on purpose to he shipped, it is a hreaeh of the blockade, being a fjontinned voya^re as to the tcraminus a quo, and the If i minus ad quern. According to the facts, those cases are conclusive up«»u the Court, nidesK any distinction can be made between them and the present. This has been at- ttMiipted, it has been said, that in those cases the gnods were transhipped at sea, and were not landed ; tliat in t/tis case, Jhey were landed, warehoused, ami even paid duties. The ciueslion then is, whether by sucli landing and |>ayment of duties, the rontinuitj of the passiige of these goods was broken, and the voyage from Tonninoen became a new voyage, and a new transaction. 'Jhis must depend upon the object in- truded to be answered by it, or (he purpose of the parties. If it «as there landed for sale, for the be- iielit of merchants, there resident, or with any other view connected with the commerce of Tonningen, the two voyages from Hamburgh to Tonning€n,\ni\ from tJience to America, might properly have been considered as two distinct transactions; and an otlence committed upon the first |)assage, might not Jiave been stibject to visitation, upon a capture upon a second voyage. IJnt if these goods stopped at Tonningen, only for the purpose of a farther convey, * Rob. VI. 201.387. T 2 275 The ''II' MS Wii.iiow. Srpt. aoth, llill.' P \ f! !l iii P 976 CASES DETERMINED IN THE The TiK MAS V M. ".S. Sept ;ii)ili, ance, on their way to America, without any sort of connectHU w ith Tonningen, it must be considered as one unbroken transaction. 13y the original orders lV(»m the consignors, they were to be sent from IJambvi-oh to the United Slates. Tliitiier they were at first consigned. Whether direct or circui- tous, tliat was lie sole and real voyage. They were never intended to stop at Toiminge'n, for any mercan- tile purp..se whatever. Tliey were sent there merely to be shipped iii a vessel which could not approach Hamburgh, on account of the blockade. It was one designated voyage from Hamburgh to the United States, and the goods were landed, ware- housed, and f)aid duties only in furtherance of that voyage. If it \\ as necessary to do so, the parties could not atxompiish their original object without it, and thai original object was never deviated from. If it was not unavoidable.it must have been done frau- dulently, ior the sake of colouring the real nature of the business. If these goods were brought through the mouth of the blockaded port, no matter whellier in great, or in small vessels; they thoi broke the blockade, and were liable to the conse- quences till they arrived at their /ual destination, notwithstanding they may have touched, or even have been landed at lifty p!ac( s. This final desti- nation was the United States, the jjort of consign- ment. During the whole intenuLtiiate period from their quitting Hamburgh, to their reaching iV/i7«r/^/. phia, they were liable to seizure and confiscation. It has however been argued, on behalf of the claimant, that whatever may be the case with such parts of this cargo, as belonged to merchants of Hamburgh, there weie others which were brought from /iasle, ami othai neutral places, and which were brought down to Aj.umbargh, merely for the purpose COURT OF yiCE-ADMIR.ALTY. bl'sliipnient: these, it is said, cannot be considered as Laving broken the blockade of Hamburgh, which was intended to operate only upon the commerce of that place, and not of remote and iidand places. It may be observed, in answer to those arynments, that the trade of any place is not contined t(. the produce and manufactures of the town itself, or of the country where it is situated. Homhuri>h, m particular, is the centre of commerce, for a large portion of the continent. Great part of the busi- ness, and of the profits of the merchants there, arise from this trade, of consignments from a great num- ber of other places. But the blockade is not limited to any one particular species of commodities, or mode of trade. It is a prohibition of all intercourse whatever, and the commission trade is as much its object as where the merchants are the proprietors of the goods. There are other goods which have been brought from inland places within the domi- nions of the enemy to Tonnmgen, not through llam- burgh, or any otber blockaded port, but either by land, oi- through open neutral ports, and belonging to neutrals. ft has been argued by the counsel for the cap- tors, that these are liable to condenmation under the order in council of the Hth November, 1H07, which declares all trade in aHicles which are of the produce or manufacture of the enemy's country to be unlawfid. But this decree was generally revoked by the order of the 'Kith April, ItJOy. except us there- in is expressed, and although some parts of that order are itnived, this clause is an. lulled by the general revocation, and was not re-enacted. It has been argued, likewise, that this trade is compre- bended under the clause in the latter order, by •which all pluces, as well as all ports, under the go- 2t7 The TllOMAI M'll M)N. Utiii. .iotli, lUU. ' I I ' 278 The Thomas VlI.SON, Sept. 3!(th, 1811. CASES DETERMIJVED IN THE vernraent of France, are declared to be subject to ^ the same restrictions in poinl of trade, ivit/wul am, exception, as if the same Nve.e blockaded; and thai therefore all such trade with inland towns b.Iono- ing to trance is prohibited. Yet certainly the order IS not capable of that construction. The words, places under Ihe government oj France^ ni.ist be taken to^^ether with the rest of the order, which evi- den ly relates only to a blockade by sea. The line ot blockaded places is marked out by the sea board, as lar .K,rth as the riyer Ems " from the ports of Or- htello and Pesan\ The ports and places are to be subject to the same restrictions as if they were ac- tually blockaded by his iMaJesly's naval forces; :,n^ It speaks of vessels trading to and from them: ex- pressions which cannot in any n.anner apply to in- land towns. ' * "^ The general principles which I have discussed considered ,n their application to the cargo of thi vessel, may be thus shortly recapitulated. fj A/'^V""'; ^^"''' '^' '"^y have been brought fiom Hamburgh, or any other blockaded port, to Ti^mingen by sea, are liable to condemnation. 1 hat all such goods as hav^ been brought from Hamburgh, or any other blockaded port bv land or inland navigation, and such as have been brouc^hi from ports not blockaded, or from the interior of the contH,ent, whether hostile or neutral, provided they belong to neutral propric.tors, a.e intitled io restl till 10)1^ Aolhing therefore remains but the particular ap- p hcalio,, „t these prineiples t„ each of the „u„,er.,„» clanns winch are before the Court, according to the measure of evKle„ce«hich is afforded- by the ca e .tself m th,s stage of it, independent of the proof of property, which is admitted to be deficient from CbURT OF ViCfl-ADMIRALTT. 279 the want of knowledge in the master, after a la* borious examination of the immense mass of papers, anionntinj^ to ahove a thonsand^ which have been made exihibiti, it appears to me, that considered in their relation to those points, the claims may be re- duced to four classes. 1. The first consists of seventeen claims. In all these there is proof that the goods came from Ham- hur^h, or other blockaded ports; but it does not ap- pear by what mode of conveyance. These are sub-'. jects for further proof, upon that head, as well as is the qnestion of the property. (The judge then spe- cified the clainis.) 2. The second class, which amounts to about fifteen claims, is of those goods which were shipped at Tonnivgen, but it does not appear from whence they came. These likewise require further evi* dence. 3. The third class is, nhere it is in proof that the goods were sent by land carriage, or inner naviga- tion. These are intitled to restitution on the proof of the prop(-riy ; but I can discover only one claim of this descrij/tion. 4. in the fi)urth, which consists of only one claim likewise, and is a case for restitution, the articles are provjnl not to have come from Hamburgh, or any other blockaded port. Having thus far disposed of this cargo, I proceed to the vessel. I'he voyage in which this vessel was taken was prima facie lawful ; Tonningen was an open port. Can then a vessel be guilty of the breach of a blockade, without entering the blockaded port? Most certainly it may. Suppose a vessel lay just off the mouth of a harbour, and received a cargo from boats or ligliters: if this is admitted to be a violation of a blockade, the mere circumstance of Thie Thomas Wilson. Seyt. ;ioth, 18U. :■ h 'a t m HJtl i !i.: !! 280 The Thoma« Wll.SON. Sept. 30tb, 18U. CASES DETERMINED IN THE distance is perfectly immaterial, whether the vessel _ was stationed at one, two, ten, or twenty leai^nes; for, m truth, it is not the entrance, or the (h'pai ture of the vessel, which it is the ohject of a blocka.le to prevent, but it is the trade, the exports, and the im- ports; if the distance is nothing, it cannot signify whether a vessel is lying in a neighbouring port or out at sea. This point has been already determined by the cases before cited, in which .ships |yi„g i„ open ports, for taking on l)oard cargoes fronj hh'i^k- aded ports, were held liable to condenuiation. 'I'hose cases are decisive as to the present case, if the fact IS proved, unless there are any grneral favourc.ble circumstances to distinguish it. Whether the cargo has actually broken the blockade, is n >t jel ascer- tained, but it depends upon the farther pnx.f to be brought in. The only question now to be ronsi- dered is, whether, supposing that fact to be proved, the ship would be subject to condemnation. Be- cause, if it would be so liable, the ship must wait till the further proof arrives, before it can be decided upon ; but It the vessel would not be subject to con- demnation, notwithstanding the facts should turn out uniavourably for the cargo, it would be unneces- sary to wail for the farther proof, which could not then affect the ship, and the owners would be in- titled to immediate resfitution. Although it should be proved that some of this cargo has been brought by sea from Hamburgh, still It has been argued, on behalf of the claimant, that the ship would not be involved in the consequences ot that offence. Three grounds of distinction, be- lueen the cases before mentioned, and the present case have been pointed out to destroy their appli- cability, and it has been argued besides, that the master uas not cognizant of the offence. COURT OF VICE-ADMIRALTY. it has been said, that in the other cases, the ves- sels had sailed from the blockaded port in ballast; here the ship never entered the blockaded port! Tins circumstance can be of little avail. The sail- ing out of the blockaded port in ballast, in those cases, WHS admitted to have been innocent. It could not therefore become otherwise, unless by being coupled with an illegal act ; two innocent acts can*^ not make a guilty one. The sailing out in ballast could not change its legal nature, unless the subse- quent act was in se, and substantially illegal. It was therefore the mere lading the goods in the open port from the blockaded one, which constituted the whole illegality in those cases. It was said next, that those vessels sailed under a charter-party, which was a more solemn instru- ment, and brought the whole transaction and all its consequences more home to the parties. This is a distinction without any foundation, because there are bills of- lading in this case, and instructions for the owners, which are sufficiently formal to attach any criminality which may belong (o the case, to the owners. They are both of the nature of con- tracts between the laders and owners of ships. A bill of lading for a part of a cargo is as effectual an instrument, as a charter-party is for the freight of a whole vessel. They differ in extent only, not in kind. The warehousing of the goods I have already con- sidered, and if no distinction can be raised upon it, respecting, the cargo, 1 do not see hDw it can be ap- plied as affording a favourable circumstance in the case of the ship, unless it should have prevented the master from knowing the preceding part of the transaction. These circumstances, in reality, are immaterial as m Sept , to lake ihe j^oods on Imard at the open port, f»oods too vvhieh were put on l)oard Jiirljfers, and which accompanied her /roin the hlock- ud«d port itselt; it could not he douhled whether he was co-nizant of the fact. For it is necessary^ l.efonr the ship can he n{]\cU'<\ hy the breach of tlie hh.ckade, I,y the car-o, " that "the master shonhl have taken it on hoard, Icttofrinn- U to liave come from llambunrh, i„ breach of' the blockade, and under an en-am mint to carry it to the nitimate port of destination." -If then it shonld be proved that a breach of the blockade had been committed by the passa-e of these goods from Hamburuh to- wards the United States, the case of the ship mnst tlopend npon there bein- cvini>en, for the while arrived there durinir his stay, and was sent for the express purpose of being h.den on board for this in- dividual ship. 1 here are letters even from llmle, Bremen, and Nuremberg, which state that goods Were to be sent from thence, thr,)ugh llumburgh, to be shipped in this vessel by name. Jt appears that he had more customers at llamhnrgli than he could «ud room for; there were many candidates for his favour, whom he was obliged to reject. Jn all these transactions numerous conjmuiucations must have tidven place between the master and (he consignors. Ju short, the whole concern of this ship and cargo, the c(msignments and the shipments are as nmch an Hamburgh transaction, as if the vessel had been lying in a port of that city, and it is utterly impos- sible that the master could have been ignorant of every particular relating to the cargo, its nature, and- objects. Since then, if the blockade has been broken, the consequences of it cannot fail of attaching most fully upon this vessel, 1 reject the prayer of the claimants for its immediate restitution, and direct the case to stand over till further proof has been brought in respecting the mode ia which the cargo was brought to Tormirtgeh. f^h Thr- I'HOMtJ Wilson. Svpl. floili. f 1 1 \ , 1 1 i|M 1 irM 1 ■H ' &^^H [ ■ f j ; ^^^1 y rJI^H V '||H| 1 i^^^^H ' 1 II^H^^H •: 'f 'li^^l : F f84 The TifAMAs Wilson, Sjpt, 3utU, tUlt. Oct. 7Jb, iBii. Slave Trade. CASES DETERMINED IN THE Upon the further proof it appeared sailsflictorily that the whole of thecar^o, which came from Jfam. fmri^/i, Jjad been brought in wag-ons, and therefore sncli parts as were proved to be neutral property were restored, as was tjie ship likewise. The Schooner Skvern, /'. liradford, taken by th« Taktarus, (Japtain Puscoe. 'T^IIE Master claimed f,ir Nalhnu Burdine and J- Smmiel lilalce, of JirLstol, in Rhode hiumi, ii, the UnUcd States, both ship and caro(, ; (j,e latter consisting of 7 orBhhds. of tobacco, 1300 oallons of rum, 2 barrels of currant wine, I0 or J,') casks of gunpowder, 8 or 10 casks of butter, 5 or 6 tierces oi' rice, 30 or 40 half barrels of beef, 2 of pork, 5 or 6 barrels of flour, 5 bales of dry goods, a few boxes of *oap and candles, and several shook chests. He swore, " that he was sent on a trading voya-c to the coast of J/rica, that he loaded at linstot, was to proceed to Sierra Leone, and there dispose of as much of the cargo as possible. Jf not able to sell the whole there, he was to proceed with the remain- der along the coast of J/rica, either to the souths ward, or the northward, and to barter the remain- der with the natives. In return he was ordered to procure by barter from the natives, gum-arabic, ivory bees -wax, and other articles ; but he was strictly for^ bidden to have any concern in the trade for slaves or to purchase negroes; and he had no intention whatever to engage in the traffic for slaves." I^hey had two iron guns (one-pounders) and four muskets, to protect themselves against the natives. Sentence.— Dr. C'ro/ee. The general principles of the law of nations, and the lact, that the slave trade is prohibited by the COURT OF VICE-ADMIRALTY. gfiS laws of the United Slates, have been established in The Scimoner the cases of the ^ntedienmi the lortuna. A claim- *""""' , ant cannot recover property employed in a course ^^'Isu!'"' of trade which is a<>ainst tlie laws of humanity, and ill (le/iance of the laws of his own country. It IS not necessary to have slaves actually on board i it was laid «lown in the Fortmia, that it was sullicient if (he unlawful tiatlic was either incipient, progres- sive, or complete. All we have to do here is to establish the fact of tradin- This may he proved by direct evidence, or by circumstances. Where die slaves are not actu- ally on board, it may often be difficult to find direct proof. This trade requires concealment. The per- sons concerned in this inhuman traflic, must have proper instruments to conduct it, who must necessa- rily be more unfeeliuf.- and unprincipled. They must have ujaslers hardened, and qualititd to go thorough- ly through the business. Little attention can be paid to the evidence of such men, when the cir- cumstances are decisively against their testimony. An examination of this vessel and cargo has taken place, by persons nominated by the claimants them- selves. They have reported, that this vessel and cargo are well adapted to the slave trade, and they state many reasons in corroboration of it. The African society has published a report, in which they have described seven characteristic cir- cumstances of a slave voyage. Five of them occur here. There have been found on board a number of small arms, a great quantity of water, rice, and slaves' provisions, mess kits and shackles. The two other circumstances stated in the report, as being often found in such vessels, namely, bulk-heads and main-dec k gratings, would be unnecessary in a small vessel like the present. It must have been m I n- C Lit'J ' 1 1 ! 1 1 am i,I t h\\ ffSS Thp Sclooner 8r» KRN. Vcl. Till, CASRS iJETEIlMINED IN TF[]] Jcnnu-n to meiTlmnls, tl.at tlio slave trade is roriMi- 'If rod in :m .inn.vonnil)!*. Iij;|,t If tl.o vessel Mas rrally -oin;. f„r.-iiin, ivory, arid tlie other iiuioeeiit articles stated, what can account for their having on hoard so many things peculiar to the slave traded but totally unnecessary for the other species of com' merce? It vvonld he contrary ro all reason, and in- consistent with prohable suppositions, 1 consider the fan to he surticiently proved, and I condemn this vessel and cargo. IU09. The Briir CertifipaJfg of «ri! in, uidnrid cfcoriii-ciiion. A'- Ji Siiwe fltlaivvise, l)v til '■ American, William Worthington, Master. JuDG^tEi^T.— /);•. Crake. 'pniS vessel and her cargo, consisting of sugar and canipeachy wood, were taken by the Ata- Appo.1. y'e to Jonningen, and have been claimed, as the property of IVilUam Cole, of Z^«//^,.ore. 1 1.e property in the ship is clear, and the cargo is a suhject for further proof, -as the orders and the tter or advice to the consignee do not appear. i'ough the letter is referred to, and the master is lJ"t hltle acquainted with the affair The hlockade of the river Ei^dcr, which was im- posed hy the order in council, of the 2d of Oclober, 1«07, was .Jiscontinued on the 13th oi Julu last and consequently above a month before this vessel sailed iiom Amenea, which was upon the 31st oi August. heonly question which remains, therefore, for the Court to decide upon, respects the certificate of ngin which was on board. There is a letter from the Inench Consul at Baltimore, to the French Con- COURT OF VICE.ADMIRALTr. ««i! ut Tonninnreti, inc:l,.siiig the rertificnto of brif,nn, " confoniial.le (lit' »iays) to thi^ crirr.ilpr of the Mini- ster of l':xtt.nial f^•lati..n^ of ihe -JOth ofy/y.r//, IH08. The nrtWif ate states, that the ear-o is the produce of Marlunque, StJaoo da Cuba,iW Uavanm, and New Orleans. It specifies i«i nhat ships it uas iniporred into the United Stales; a„d the Fnnch Consul ftir- ther certiti(?H, '' Que Us dUvs marchandlses ne pro- viennenl point de la (iramle Brelapu; ui. de ses volo- tiies, ni de son nulustrie, ou de .wn connmrcc," and it hears date on tlie .3()(h of Amrust, 1 80.'). Upon general principles, all aid given to i\\G French government, to enable it to carry into eflect the de- crees which f)rohil*it all commerce witii (heat Bri- tain, and in the produce and manuftutnres of that country, nnder an assumption of pouer, not ju^ti- fied hy the law of natons, is a departure from the duties of neutrality ; such is sailinj,' nnder the |)rotec- tion of the certificates which have luen found on hoard this, and n any other vessels;, Tiiey profes, sedly have been procured by American merchants, and gfranted by the French Consul, in obedience to Ihe directions of the /Vewc// government, and their object is, by particularly specifying? the place of growth and manufacture, and that no goods of Bri- /<«// origin are amongst them, to exclude all articles of Britis/t produce or manidactme, fiom the general commerce of the world. It is, in fact, an extension of the power of the Frene/i government, beyond their own dominions, into neutral countries, and to make the subjects of those countries instruments to carry into effect their unjust a^ul novel mode of hostilities. All persons, who place their property under the pro- tection of such instruments, are guilty of a depar- ture from their neutrality, may properly be consi- dered as the agents of the Frenth government, ia fsr TliP Unt Amikicaki. 04t. «Ull, ri 1 ! fi88 The Brif> Amkbican. Oct. •.',,t)i, CASES DETERMINED IN THE their (Io«igns afr:iinst Great JJntain, and vessels so «ituak..J, n.iirht 1,^. lawfully cunliscale.l. IJut tjuse principles, however just in themselves, had luver been acl.'d upon, and no property was condemned upon them, till they were called into life and efli- caey hy His Majesty's order in e.»uncil of the llth ot i\ovanbcr, (U()7. After sJatin^^ llmt they were an expedient directed hy rruncc, and sul.mitted l„ by merchants, as part of (he new system of warfare against the trade of this kinodoin, the order de- chned, that - if any vessel should he found carryiu • any such certilicate, such vessel should be adjndgeu iuwl.d pn/e, toiiether with the «oods laden then in ' it this order is still in force, there can be no douhl bnt that this vessel and « argo are lial)le to condeniiia- tion. The (piestion, therefore is, whether it has been ^nice repealed. The whole of that order was in lorce till April, and fomjed the basis of the neo-o- ciation between Mr Er.Uhu^ and the Anurican lo- vern.nent. if it has been revoketl^,uUese parts of the order which relate to the bTock: ade and commerce. And that th^y do refer to the p.ecedn,g recital is evident, because the words are, HJiereas u js expedient, that sundry/ parts andpro- li^^ions of the said orders should be altered and re- voJved, h.s Majesty is therefore pleased to revoke and-an.nd the said several orders." jf parts only of the sa^d orders were to be revoked, what parts is it natural to understand, but such as have been re- cued m the preamble, and to which alone the subse- quent provisions, substituted in their place, exclu- Mvely correspond? If the recital consisted only of ^^eneral reference by ^he date, or of a general de- scnption of the order, however short or imperfect, it Wght be supposed to comprehend, at least by im- P cation, the whole of the order; but it contains ;i flimute and particular recital of the two gre^jt SS9 The BriK A.*llilllt \N. Octuh. '.'Mb, ' ■' ,f.' 1 1 \ S90 CASES DETERMINED IN THE l>mncliea of wl)icli the first part of the order con- fsit^lcd, uan)oly, the bKjckacIe and the comiuenv, without any reference to tlie latter part about tl a ct'rlili^:^l<^ which formed a distinct subject. I'hat lalkr part \asabsolu:('ly inseparable from carrying into eflecf bis determination, to counteract the designs of his enemies " " And whereas in consequence of divers events which have taken place, allecting the rela- ti-;)!! between (iirai liritaiu and the territories of other powers, it is expedient that sundry parts and provisions of the said orders sliould be altered and revoked.' And the only order substituted in the place of (he former relates only lo the blockade. JNow it is evident that the inconvenience to neu- trals here allnded to, can have been nothing else but tiw, very extensive blockade estabhshed. The *' events which had taken place, afiecting the terri- tories of the other powers," could refer only to the same point, and the relief granted by restrictiii!^ the blockade within the proposed limits, was coui- niensurate with the inconveniences complained of, and adequate to the relief of them. To open the blockade, therefore, comported with every object then Klated, and the repealing of that part which related to certificates of origin, seems to have uq couceru or coimectiou with it. ivas coin- <^OURT OF VlCE-ADMIRALTr, It was, hovvovei- ar-ued, t#iaf it was a material benefit to neutrals, to repeal this part, because by the regulations of several countries, which have [adopted the French regulations, neutral vessels could not enter their ports, without such certificates. This IS not q:en<.rally the fact, it is true only of France and Spain, which have enforced linonapnrte's decrees, but no other countries have adopted them • Ihnmark for instance, to which this cargo was going! IJesides, though Great JJritain might be willing to yield something for the convenience of neutral nations, to confine for irjstance, her blockades, much within the boundaries to which shewouldbc justified in ex- tending them; yet it would be too much to expect that for any little casual advantage to them, by al- lowing these certificates of origin, she sliould give effect to measures calculated totally to ruin her commerce. If the French seize and confiscate vessels ior not having certificates of origin, it is an open act of injustice; and JJritain is under no obligation, even by the strictest relations of amity and friend- sin)), to prevent such unjust acts on the part of Fruticc, at her own expence, and by so great a sacrifice. Since this is scarcely to be expected or required. I cannot understand that this part of the order in council, which is so strongly worded, and IS accompanied with such solid reasons, shou'ld be revoked, without the most exiuess words to that effect, and without any direct reference to it. It may be something to discover from subsequent acts of government, in what light this latter order was considered. If we look at posterior orders of couut cil, they speak of the order o( November " as altered" only by that of April, and the wonls " revoArtr or « repealed " never occur. Thus the order of tho 24th May, 1809, speaks of the blockade as cofi. n 9. Tlie Rri^ Ami:bi(;a!«: Oct. g.Mh, 1809. i'llli • t il i I'fll it! HI I t CASES DETERMINED IN THE Wrffromtlie former order, andas « «//,,.,^" by the latter order ^ The impression upon my mind therefore, is that these twoarticles. the 10th and the Uth of the order lu council of the Mih oi November, 1807. have not bee« repealed, and that this vessel and cargo are therefore liable to confiscation. X must confess, at the same time, that there is an obscurity in the order ^bich renders me far from bein^^ perfectly satisfied, tha. this isthe true interpretation of them ; and I yuld therefore recommend to the parties, to refer ^ITfr';^/^^' ^''^^ '"'^"»"'' ^^hich. beingcom- ^sed of His Majesty's ministers, is best qualified to exp^am the acts of His Majesty', government. N. B. By the subsequent decisions in the court of Appeals in this and some other cases, which came before them, the lords were of opinion, that the hvlT^T^ '; certificates of origin, was repealed by the order of the 26th of Apnl, and therefore in all subsequent cases, though certificates of oriffi., J«>e frequently found, they were not coasidered as afiordujg ground for condemnation. The Brig Express, Simeon Haskcl, Master. with a cargo of copper in pigs, hides &c She was claimed, together with thecargo for .W Gray of Boston In the claim the ma'ster aS d ^^^. w^h dirrti'^'r^'i?"^^'^' ^ p«^' - ^^-^^t Kr^^ ^ ''^ instructions from Messrs. Ry. C^mlta^en did not exO^ni to other Dumsh norls ,.n^.., ♦!, . . Orffer of 7tli ■.^ffli. 1807,110* to trade be- tween tyro ene- tnies ports, ap. pKeg otJy to wessek, taken COURT OF VICE-ADmnXLTT. io"rff, and Company there, and witr. «l.t proceed. lie was (o purchase hnen and other goods." Judo WENT— I>r. Cmie. Four points have been made by the captors. f irst. I hat »h.s vessel wus proceedimr to ttade between two e,«,n,y's ports, in viotatio« ^ the oS m cou.,c,. of the 7th of Jan„ar,. ,807. Bnt the^S no proof whatever of any intention of such tradi™." tecause .f we take the claim, as affonling evid^fj t a the real destn,at,o„ was Cope»i„ge,, that .tate e e a. rjZr? """""^ ^'^^ «-'ob- deposited .Ln If h . ' ""' ""■■«l»ced merely as adec^v ton^lfthetacs were madeout, still thelaw ««„td^ hem. The order authorizes the seizure ami ««. damnation of snch vessels only, as are found comfos from any port of the e«>my, and destined to s„A another port. The mere intention woutd m.t io "^ case constitute the offence. «as blockaded, „„,ler the notification of ,t,e 4th of ^%, .«08,. that though that port was not mentton^ b,v name, the blockade of the por, of Coneni^^ and the other ports of Zeal„d must be on'Sod' :ir:'"C'r;i, "" °"'^^ """* ■" ^— *^ w^^' weie beyond them, since it was necessary to pass to con end that, m an enlarged sense, and, con- -tently w,ti, the apparent intention of the blockad" tl^ two passi^ges of the AWrf, and the Belt, mi^hi not nnproperly be considered as coming „i,^™rhe descriptmn f,hep„rts„f^i„/„,,rf. The«!a~u tt block iTk"' "^ ■•""fi-fo-establisleso'ly we blockade ofthtijort of f>„«,/,„„™ „..j -t -. ' ' .<-""-"^"o "-"'""" *iit^ Oilier 25$ ill s»aij, 1 1 'fl j^^^^^M J 1 ' 1 m ifl ■ ' i ' iu IH ii^ inPw^l 1 m 1 '' '^ H W' ■ ill i ' '1 'ifl 1 ■;.i ; jl j ^ 1 / ill ! 1 1 ( 1 ^^H : ^^^^^1 1 1 i;J 294 The Brl^. Express. Nor. etiif inn. CASES DETERMINED IN THE ports of Zealand, it is not a blockade ^eneraUy of all Denmark, or of the entrance, into the Bullic. A blockade cannot ho ovtended by infV'rence, and !sii|,. position. It is one of the severe rights of war, which are liable to a strict and \\^k\ interpretation. The order cannot be pressed beyond the plain, and dcHnite words. As to a njere blockade, dc facto, wilhont public notification, there is neither evidence of an investment of the port of A7<:/,orof notice given to the vessel, both which would be necessary to charge the parties with the breach of it. Thirdly. Copper is said to be a contraband article, this copper was in pigs, and though there are so many cases, relating almost toeverys|)eciesofgoo(!H, upon which the question of contraband can arise, 1 am not aware of any decision upon copper, in its unmanufactured state, independent of treaty. If it were in a state, which was immediately applicable to the fabric of ships, as in sheets for sheathing, or m the proper form for njaking bolts, or other n.- ccssary parts of vessels; there could be little hesitation in i)ronouncing it confiscable, unless it were clearly intended tor the |)nrposes of nieie mercantile navigation. Jn its nule state it must be considered upon the sanje footing, with iron or steel, as an intide promiscui nsiis.' In th^Mon- struction of the Swedish treaty of Jt]0;i, bv which all manufactured articles, immediately serving for the equipment of ships of war, were declared to be con- traband, copper in sheets was condemned ; what was doubtfid as to its use, was reserved, and the re- maining part, which was not (it for that purpose, was restored.* So, in the treaty with America, 1795, copper in sheets only^ is enumerated amongst contraband arti- * Charlotte Focks, Rob. 5. 2 /J COURT OF VICE-ADMIRALTY. des, as seiving directly to the equipment of vessels. These treaties in themselves, bein<^- matter of coiu- pact, do not affect the present question ; but, together with the construction put upon them, they point out the general understanding of the hiw of nations upon this point. The cases, in which wine, cheese, and other articles,, in themselves perfectly innocent, were condemned, were all cases, in which they were direclltf applicable to the fitting out of fleets and ships of war. Copper in pigs is not indeed immediately useful for any pm-pose, but it may be converted with the greatest facility, in any manufacturing country, to any use which may be required. The same crtte- r on may be properly adopted here, which has been laid down in so many other cases of contraband, the employment of the port to which the article was destined. If it were a mere commercial port, this metal must he presumed to be intended for mercan- tile purposes, the usual traffic in that article, and the fabric of merchantmen. If, on the contrary, it were going to a port of naval and military equipment, where a supply of copper, for many purposes, is ab- solutely necessary ; since it is highly pi-esumab!e, that it will be manufactured, and applied to the fitting out of ships of war, the other belligerent has a right to intercept and confiscate it. Now it has never been understood that Kiel is a port of naval equipment, iXmiv^x Copenliagen is undoubtedly so. The fate of this vessel depends theref(jre, as far as this question is concerned, upon the actual desti- nation. As one of those ports is blockaded, and the other is free, the destinatiun becomes the main (jiies(ion likewise, upon the fourth puint, made by the cap- tors' counsel, and which I now proceed to cousidei\ 295 The Brig T^XPRFSS. Nov. oth, 1811> 1' P u i 1 1 >m a s^c The rtrig lO.M'KKss, CASES DETERMINIJ/) IN TtW Awr. tith, mil. il..M.|4,l„.a.,o„ „f ,|,c ,,l,„.ka.l,. or 6Vv;„,/,„„,„ -not lK..„ ,vvok..d I.V.I,., ,T|„.li,„- ,„.,..,.., A : -I- , l.ut of e..,.tai„ .,,.„,„,,. ,,,„,,„,,„_ ,, ' ..1 bee,. , „.eclewus to toj)fnfi<(i;rn. The AJastcr iu his instructio.Ks is ^lirectcd to touch t^'''Tr^ to cidive. a letto.- to Messrs. 7^1 to H I '?'" '"■'"^' ^^^ ^'^'^'^ ^'^'J'ver your car-^a i/«sf rr •^""- " ^ ^^^^^ ^^'^^re^l Captain ^a^kct to wa.t ..pou you, and to request vou a -"ae a goud hou.e at A7./." Nol il LI ckadcd port itself ? To confirm this supposition, look at the evidence of some of the witnesses and the letters on board. i^ometinng more than touching at Copeuhaon the evident^e, whether they were compelled to jfo to JIaii/'ax, and could not set back to a port in the I'm led States, if nnahle to prtKsecute their original voya}>e. 1. 'J'he Master in his claim merely states that the vessel b( injj; nnHt to perforin her voyji^e, and hein;; api)rehensive, if heen(eieorted under the (Jovernor'n iiroclaniu- tiouofthe ]'lt\i of AJnrc/t, IHI2. S'cnlence.—XJiuloA' the 28tJi (Jeo. indeed, only the «liip and noxious articles are confiscable, but here all are noxious. The Governor's f)roclamation not being founded on any Act of Parliament is void. The Act (49 Geo. III. c. 49.) expired the 25lh of March, 1812; this vessel imported inApriL SQl The Patty. May I4tli, lUlt. Instance Court. The Brig, Dart, James Ramage, ni HE brig Dart was seized bi/ the Collector, with a cargo consisting of 355 bales of cotton, and 2187 bars of lead. There was a claim for the ship by the master, for Joseph F. Gray and John Tai/lor of New Orleans, and for the car^o, for Messrs. I'a^/or and Grai/, Gustavus and Hup;h Colhoun, and Peter Gra- 1mm and Co. of Philadelphia. The claim stated, that the vessel was bound from New Orleans to Phi- ladelphia, sailed the 16th of April, arrived off the capes of Delaware the 17th of 3Iai/, where the master received a letter from his owner's agents by a pilot boat, which had been waiting for him two weeks, informing him that an embargo had been imposed Jutij 31 St. 1U1«. Not war till anllioi'ised by his Maji'sty. Property found in (liecuiiiitryat the comiiiciicc!- raent of war not liable tu be seized. Where the property of the eneroy is prutected he luay appear in a court of juttice. Questions of im- portatieu. i;. ! 309 Till Brig Dart CASES DETERMINED IN THE ism. upon all Amfvican vessels, and therefore tlirectcd him to proceed witli the briguntine niid lior cargo to the port of Liverpool in Great Britain, and deliver the same to Messrs. Forde and company at that place. That there not being on board a Hufficient quantity of provisions or water, for that voyage, and the en w refusing to proceed, the deponent dispatched the same pilot boat to Philadelphia, and informed Messrs, Gray and Taylor of the circumstance, and requested them to give the deponent instructions for his future directions. That the hrigantine continued off tlio capes of Delaware, waiting for the return of the pilot boat, until the ^2nd day of May, when it returned with a new crew and further imtructions frotn Messrs, Gray and Taylor to procure provisions from some vessel on the coast, and proceed to Liverpool, and, if this respondent could not obtain provisions in that way, to touch at Halifax for them, and then proceed to Literpool, and they also sent a certificate from His Majesty's Proconsul General, as follows : " To all to whom these presents shall come, I Tho- mas William Moor, Esq. His Britannic Majesty's proconsul for the middle and southern states of ^iwe- rica, do hereby certify that the brig Dart, on her arrival off the capes of the Delaware, was ordered by the owner's agents, in consequence of the embargo, to proceed with her cargo to Liverpool. As it is impossible, without incurring severe penalties, to procure her provisions from this place for her in- tended voyage, intends touching at Halifax for the purpose of procuring supplies." That the respon- dent not being able to get supplies from any vessels on the coast, and not entertaining the slightest doubt from the said certificate, but that he should be per- mitted to take in provisions and water for the -^.d voyage, proceeded to Halifax, where he arrived irj »l!il. . ■ directed r carij^o to id deliver liat place, quantity the en vv died the J Messrs. requested lis future I off the the pilot returned ms from ons from iverjwol, isious in ind then ^rtificatc follows : , I 77/0- lajestj's of AniC' on Iier lered by Tibargo, Is it is ties, to her in- for tlie rcspori- vessels '/ doubt be per- he M^id ived iq COURT OF VICE ADMIRALTY. 30S the evening: of Sundajj the 6th of June, and anchored The Brig d*«. in the harbour, and on the Mondajj following in- formed T. N. Jeff'vetj the collector, of the aforesBid ^^mr' circumstance, who seized the brig. Upon tl>e admission of the claim. SENTENCE.~Dr. Croke. This American vessel was seized by the collector of the customs in the port of Halifax, upon the 7th of June, for an importation into Nova Scotia, con- trary to law. Since that period, namely upon the 20th of June, the j^overnment of the United States, by a public instrument, lias declared war against Crcnt Britain. In consequence of this event, before the Court can consider the question of importation, there are two more material points to determine. Py the declara- tion of war, it is said, that the claimants arc become enemies, and the ship and cars:o enemy's property. That not only the parties therefore are disqualified from appearing- in a British court of justice, but that the seizor is entitled to retain the ship and cargo, of which he has the bona, fide possession, by the title of occupancy, as belonging to an alien enemy. Here are therefore three questions to consider, first, whether by the declaration of war on the part of the United States, without any declaration made by Great Britain, American subjects are become enemies, and, secondly and thirdly, supposing them to be enemieg, whether nevertheless such conse- quences as are alledged by the captors would attach upon their property and persons in the present case. What shall constitute a state of war between two countries has been often debated, and the doctrines which have been laid down ii our English law books \ I r ! 1 'j r^M M hi H 304 The Brig Dart. CASES DETERMINED IN TFIE July Slst, mat. may seem at first aiglit to bo at variance with vm\i other. If we look at the older autlioritirs, u(> fiiul it to be an established maxiin, that no war can subsist without the concurrence of the kin«;-, that if all tlie subjects of Eus^land should make war wiih a king in league with the k'm^ o^ England, viM\umi the roval assent, such war is no breach of Ihe Icaeue.* " Tiiat is a time of hostility," says Lord Chief Justice Uidc,-\ " when war is proclaimed by the king against a fo- reign prince or state. 27ns and this onltj rnidcra them enemies." It is not however to be understood to be necessary that war should be scdaiinli) dcchmul by the King of England. If a war de facto subsisis between Great Bviiaiu and any other country, with- out a regular declaration, the subjects of that country would be alien enemies. But I apprehend that where there is no express declaration of war, the hostilities exercised on the part of Great Britain must be sane tioned by the sovereign, or there must be some acts, or other proceedings, which shew his intention of placing the country in a state of hostility in respect to any given country. If not an express declaration, there must be something equivalent to it. Whatever declarations of war tJierefore may be made by foreign powers, whatever hostile acts may be committed by them, or whatever means may be adopted to repel them by the sole authority of the subjects in virtue of the right of self-defence, the state of mutual and re- ciprocal hostilities between any country and the British dominions cannot legally commence till the kmg, in whom solely the power of peace and war is vested, either by express declaration, or by some other manifestation of his hostile intentions, such as having recourse to arms, has placed his dominions in a state • 4 Inst. 152, t Hargrave'i Tracts, vol. i. p. 245, • Rob. iv. 253. t Rob. i. 210. X X Ibid. Jii'v 31st, COURT OF VICE-ADMIRALTY. 305 of warfare. When such manifestation is made, and The Brig dart. not before, the complete legal state of hostilities exists, with all its consequences, and since, the mo- ment a man becomes an enemy, all his antecedent rights are annihilated, it must of course operate upon all preceding transactions. None of the cases which have been cited are inconsistent with this doctrine. Ill the case of the Noyadc* in the High Court of Admiralty, where it was said that it was not necessary that both countries should declare war, there was proof that though Portugal had not declared war in form, yet war actually subsisted on both sides, and a French agent of prisoners was resident in Portugal. In the E^nigliied,-\ the Fortune,X and other cases in the courts of prize, and in the case of Oom v. Bruce in the king's bench, reported in East, vol. xii. p. 235, in all those cases actual war on the part of Great Britain had followed the declaration, and the acts of the enemy, and the intermediate time had retro- spectively acquired an hostile character. The old doctrine of the English lawyers has never yet that I know of been considered as superseded by any more modern decisions. What measures will be taken by the British government in consequence of the decla- ration of war by the United States, and whether any corresponding declaration may be made, or hostilities commenced, has not been ascertained. But most cer- tainly nc authority to detain, or condemn, American property has been transmitted to this Court. Till some signification of His Majesty's intention has been made, I cannot consider the subjects of ^/?«enca as alien enemies, to every purpose of law ; I cannot absolutely say that they are disqualified from appear- ing in a British court of justice, or that their pro- II- ' I'Ji I ! lllllll : 306 CASES DETERMINED IN THE fl TheBrigPAnx . perty is liable to be treated as enemy's property, /«',v3ist, without a sanction from the British government, 1612. They may possibly be declared to be enemies in fijture, but their present situation is ambiguous. . Whilst this uncertainty contiiiues, the Court cannot reject the claim ot" the parties, or condemn their pro- perty. Neither in this state of semi-hostilities with the United States, would it think itself justified in restoring goods, which may have been already de- clared to be the property of an enemy. If the w hole af this case turned therefore upon this point, I should direct it to stand over till His Majesty's instructions have been received from England. But it may not be necessary either to decide this point, or to wait for instructions. Even taking it for granted that the subjects of the United States have now fully acquired an hostile character, it may still be questioned whether this ship was seized under such circumstances as would render it liable to con- fiscation, on account of hostilities, or whether the claimants would be disqualified from appearing here. The ship entered this port and was seized before the declaration of war by the United States. They have ever since been in the custody of the officers of this Court, under a detention which on the part of the owners was involuntary. It was found in the country therefore in time of peace, and at the commencement of the war. Whether we consult the writers upon the law of nations, or the municipal laws of this country, the person and effects of an enemy so situated cannot be detained. Proceedings of this nature, which arise out of a state of hostility, are to be go- verned by the law of nations.* That law, in cases to * Lord Mansfield. Doug. 625. Cornu v. Blackburn. 1 Liv. iii. c. 4. § 63. COURT OF VICE-ADMIRALTY. 30f Julyr,lsx, 1812. which it applies, is part of the law of England. TLeBisDAnr. Whatever might formerly have been the case, it is ~' now settled as an established principle of public law, as it is stated by Vattel*. " That a sovereign cannot retain the subjects, or the effects of the enemy which are found within his dominions at the commencement of a war, tljat they come upon the public faith, and the sovereign by permitting them to enter has tacitly promised the liberty of returning in safety." In thi British law, it was provided as early as Magna Charta, that " if merchants are of a land making war against us, and such be found in our realm at the be- ginning of the wars, they shall be attached without harm of body or goods until it be known, how our merchants be intrcated there, in the land making Avar against us, and if our merchants be well intreated there, theirs shall be likewise with us." In the sta- tute of the Staple, 27th Edward III. c. 17. " In case of war, merchant strangers shall have free liberty to depart the realm with their goods freely." It was more recently resolved by all the judges " that if a Frenchman brings goods into England before war proclaimed, neither his person or his goods can be seized. "f The same doctvine may be traced through the whole current of legil authorities to the present time. It being clear then that this ship was not liable to be seized on account of the commencement of hostilities if it had been lying in the port in the usual course of commerce, the situation cannot be made worse by the seizure of the collector. If indeed the seizure should prove upon the trial to have been made upon good grounds, the vessel would have been liable to forfeiture, for a breach of the law, even if peace had continued ; but if the seizure should prove * Jenk. 201.pl. 22. t Law of Nations, B. iii. ch. iv. § 36. x2 ft hilJ ;:l [1 1 , j '1 1 ffr III I 1 1 1 ao3 CASES DETERMfNED IN THE TlioRricDAiiT , •'"'•/ ;U3t, to have been made without reason, the parties would be intitlcd to have their property restored in the same state iu which it was at the time of seizure. If the seizure was improperly made, the owners by such tor- tious possession cannot be injured in their rights. The seizor can gaiu no additional advantages from such a possession. If the parties were not guilty of a breach of the laws, they were innocent, and their coming into this port was a lawful entry. The seizure cannot make it otherwise. No advantage can be taken of the delay, because it was not the act of the owners but compul- sory. The question of the breach of the revenue laws^ and the right of seizing the property of an enemy are perfectly distinct. The collector cannot say, '' It is true I seized this vessel for controverting- the British laws, but I will now retain it as encm/s property," because he had no original right whatever to seize it as enemy's property. If not to seize neither can he have any right to retain. It is how- ever said, that if the owner is become an alien enemy he cannot appear as a party in this Court to claim hU property. I know that there is no doctrine more certain than that an alien enemy cannot appear as a party in a British court of justice. Whatever doubts might have before prevailed from the cases of liicord and Bctcnham* of Cornn and Blackhurne,f and other cases, it seems now indisputably settled by the case of Brandon v. Nesbit,X that no action for, or in favour of, an enemy can be maintained. But to this rule theie are many exceptions. When- ever an alien enemy is under the king's protection the disability is removed. If he comes under a safe con- duct, if he is a captive or a prisoner of war, if he • Burrow. 3. f l>ous. 6l9. tST,R, 23. COUIIT OF VfCE-ADMIUALTY. comes before a war, and continues by the kind's leave, either express or tacitly, he may sue his boml or contract.* It is true that all these cases suppose the alien to be commoraut here, and not abiding in his own country, and that those priviioft-os are allowed him in consequence of the protection afforded to his person ; but the same principles will apply with equal force to every case where his propevti/ is protected. If property belonging to an alien enemy, which is found here at the commencement of a war, cannot be seized, it is under the protection of the law. With respect to such property the owner is in league and amity, and in the king's peace ; as far a> that property is concerned he is not an enemy. But if his property is thus under the protection of the law, h<»w is that protection to be extended to it but by the intervention of courts of justice? If the owners cannot apply there for redress, whenever their rights in such property are infringed, the protection is a mere name. To tell foreign merchants, " your ships and goods it is true cannot be seized, but if they are seized you cannot institute a suit in law to recover them, if they are prosecuted criminally you cannot appear to defend them," would be a mockery upon justice itself. It would be a palpable violation of the law of nations, and of the public faith. Accordingly we find, that, in the High Court of Admiralty, alien enemies, though resident in the enemy's country, are allowed to claim vessels and car- goes which are protected by license, which are em- ployed as cartels, or which come under flags of truce, or safe conducts. Licenses indeed are an express authority from His Majesty, but the other cases de- pend upon the general law, and upon common usage, * Wells V. Williami, Lord Raymond 1. 282. 30.9 Tlic Fdii; Daiit, IfllV. F i ! in il KM ! iCilill 4h I 1' t I 'f 1 1 % ^ 310 CASES DETERMINED IN THE lUl', \'t :"'""''"'"" ^''^y tliercforo prove fully, that where the property of J../.V3U.. an ciicmy is protected, his residence in an hostile country docs not disqualify him from bccomiii^r ^ pariy in a British court of justice, and that the pro- tection granted to his properly f.ives him quoad hoc a persona standi in Judiciu. The decision of the courts of coniMjon law, where it was held that fo- reigner. so resident could not appear, related to con- tracts which were merely of a peaceul.lc nafure, and had no r-ference to the stale of war, such as in- surances. But the profecJion claimed by alien ene- mies for property found at thecommei.cemciitof awar, is a right founded in the laws of war itself, a righi given them by the universal practice of all nations, and of the ^A77M law; inconsequence of, and with relation to 7i;ar itself, such rights are not alTetted by the exis same, and therefore as far as any questions turn upon tnat point, it may be proper to consider them toj^ether ; adverting afterwards to any tlilForr'nces which may in other respects appear. This then is property which lias been seized and detained, in consequence of a declaration of war made by the United States against Great Britain, but before any orders have been given by IIjs Ma- jesty in council r«»r general leprizals, and before any coininissiou had been issued to rerc the hist prize act (f5 (ico. HI cap. V4. § ;n ) aays, that prizes shall stay, without br.'akine; bulk, until the same shall, bv final sentence, have been either cleared and discharged, or adjudged and condemned as prize; or such order as is there directed shall have oeen made for releas- iii£^ or delivering the satne. The only interlocutory ord rs to that elFect. directed by the acts, are those upon further proof, or upon appeal No authority whatever is given to the Court to release or deli- ver the capture, either on bail, by sale, or by any other mode, before the hearing of the cause. In the intermediate time, it is indeed subj ct to the direc- tions of the Court of Vice-Admiralty, but those directions are controulcd by the positive provisions of the act, that the captures shall without breaking bulk remain in custody till sentence, or till the other two cases occur. The power of giving directions is limited to the care and safety of the captures, for bet- ter maintaining the custody, and performing the trust of safe keeping. Where indeed a cargo is in danger of perishing, the Court may direct it to be sold, because it is for the benefit of the parties to preserve the value of the goods, when the articles themselves would in effect be lost. Let us now enquire into the practice of the Courts of Admiralty, and their decisions which constitute the common law of those courts. I directed the registrar to search the records of this Court, whether there were any precedents to 315 The CoBi.Kw, ice. Annnn rtli, XU13. .1 ■ I i', 111 ifi ■ i .di fffTII .116 CASES DICTKUMINKU LN nil.: The Criu.Rw, iic. Anguit 7ili, mia. Iv ! slicvv that prize Hliips or cargoes have been delivered upon hail, or sold hcforo hearing, except in the case of perishable goods. It in admitted that no prece- dents to that effect arc to be found. Upon points of general practice, especially of the negative kind, uud which are not disputed, decisions are rarely to be expected. It happens, however, that upon tliis ques- lion, a decision is to be found. In the case of the Co- pcHhagai, Mnllins (3 Rob. ilH.) Arnold moved the Court to allow a cargo oC Bntaviari produce to be taken on bail, before the hearing the cause, on a sug- gestion that it consisted of articles much wanted at Copenhagen, and for which the market here would not afford aa adequate price. The Court asked whether it was opposed, or the captors consented ; to which it was answered, that they did not consent. Upon which Sir IVilliani Scott said, " I know of no in- stance in which the Court has made such an order, unless where all the parties arc consenting to it." It is evident from what he subjoins, that the sub- stance of tlie petition in that case has been imperfectly stated in the report. He adds, that " the proper re- mcdy for the inconvenience stated in the petition would be a conmiission for appraisement and sale." Now the only inconvenience stated in the reported case is, " that the English market would not afford an adequate price." A commission of sale under which the articles could be sold only in England so far from being a remedy would produce the very evils appre- hended, and therefore it is clear that there must have been a suggestion that the goods were of a perishable nature, in which case the Court might have issued such a commission. No doubt the prayer of these petitions might be granted with the consent of the parties interested. But who are they ? COUUT or VICE-ADMIRAUn . J. Tlio captors have at this time no known inter- est, present or future ; though it is possibh; that they may acquire, or even may have already acquired, a title to pii/e from the bounty of the Crown. It was admitted that their consent was immaterial, or if the Court thouf^ht otherwise, that this consent niight be obtained. 2. In the present state of things there is a possi bility of a foreign neutral interest which may be as- serted by a regular claim. Besides other countries really neutral, till the British Government has declared the subjects of the United States to be enemies by its order for general reprisal, and by a warrant to con- demn their goods, this Court cannot consider them as enemy's property. Even an order from the British Government to seize and detain vessels, would not have that effect. That might be only provisional, and must depend upon subsequent explanation having a retroactive power. Nor is the declaration of war by the enemy any authority to condemn their property. It is only a challenge which the British Government may not think proper to accept. It may still look to a revoca- tion of that declaration, and not have recourse to arms. It may not authorize reprisals. Seizures made may be declared to have been only on the footing of a tem- porary sequestration. The property never having ac- quired the character of hostile may be restored to the American owner, who is not yet disqualified from claiming by any act of the British Government. 3. The other party is the King, to whom all prize originally belongs, jMr m I! ' ' ^f i • '11 320 The Ci Rr.EW,&c CASES DETERMINED IN THE August 7\ii, 1812. V I nn been held to have vested in the capturins: countrt immediately upon capture, the property would then have been changed. It appears therefore that the King in his proclama- tion disposes to the captors only of such right as he has, namely, the capture after condemnation, and this clause contains no limitation but what before existed in the Crown itself. 2. But supposing that the Crown had a vested ri^ht, the Court could not dispose of it, even for public purposes. Could it be done in the case of a private person, and are the rights of the King less sacred than those of his subjects, or of foreign claimants ? It is said that this property is demanded by the King's officers, for his own service, and that it is only taking out of one pocket and putting into another. But the property belongs to the King as his private patrimony, the service for which it is now required is the public service of the state. This service is pro- vided for by parliamentary grants, and no part of the King's patrimony can be applied to it without his consent. It was in some measure admitted that the Court could not, generally speaking, dispose of the King's property, but another ground was resorted to, that of a right of pre-emption in the King's officers. The acts of parliament shew that no such right exists. By the clause of the Prize Act referred to (45 Geo. III. c. 72. § «8.) " the navy victualling boards are em- '' powered to purchase naval stores found on board " foreign sllips without proceeding to condemnation." But this is limited by the words of the act, to vessels brought into the ports of Great Britain. From this clause two conclusions may be drawn, both adverse to the argument. COURT OF VICE-ADMIRALTY. One is, that it was not the institution of tlie legis- lature to extend this power to the colonies. The other, that without such express authority they could not be purchased or sold before condem- nation, even in Great Britain. By a former Prize Act (37 Geo. III. cap. 109. § 6.) the pre-emption of prize ships was to be offered to the Navy Board, and of guns, arms, and ordnance stores, to the Ordnance Board, to be paid for by bills or debentures according, to a valuation. This act expired, and the clause has not been since renewed. But whilst it was in force it extended only to sales, after condemnation, and it is to be concluded from it, that even then. His Majesty's officers in those de- partments, would have no right of pre-emption with- out such power given them. In truth then, the King's officers, and the official boards in the various departments of service, naval and military, with respect to prize property, stands precisely upon the same footing with other persons. They are not entitled to take such property upon bail, or to have it sold to them, at any periods of the proceedings in prize causes, when such delivery or sale, could not be legallu made to any other persons : they have no right of preference in pre-emption, at any period, when prize property, may lawfully %e bailed, or sold, but must come in upon the same terms, and upon a perfect equamy with every other indifferent person. No distinclion is made iu their favour with respect to captures brought into the co- lonies, by any law, statute, practice, or precedent with which I am acquainted. It is clear then that this Court has no power of telling or bailing prize property previous to a hear- ing of the cause, to any departments in His Majesty's •ervice, in the ordinary course of that service, or for X 321 The CmLEw, &c. AugHtt 7th, IBIS. ' I] 'It M I'' ' 322 CASES DETERMINED IN THE !« The CuntEW, &c. Au;;ust 7lh, their ordinary exigencies. But there are certain cases of necessity, in which the right of self-defence, the first law of nature and of nations, supersedes all infe- rior rights, and dispenses with the usual modes of proceeding. To provide for such extraordinary cases, a directionary power must of necessity, and from the nature of things, be entrusted to those to who.n the application and the execution of those laws is coin- uiitted. Such cases must form exceptions to the ge- neral rule of the law of nations, by which the mere custodium inutile is assigned to the capturing nation before the decision of the proper tribunal. They must form a case which must be fairly understood to be comprehended under the directionary power given to the Court of Admiralty, either by the general law, or the provisions of the acts of parliament. Do the present circumstances of this province pre- sent such a ciise as is stated upon these petitions, or is of public not3riety ? At the time when Great Britain was exerting every effort to conciliate the friendship of the United States, at the very moment when the principal subjec* of dis- pute had been removed, and negociations of a pacific nature were still carrying on, a party at the head of affairs in that unhappy country, without the usual forms prescribed by the law of nations, and observed by all civilized countries, suddenly declared war against Great Britain and her dependencies. No sa- gacity could foresee, nor could the most cautious prudence think it necessary to guard against an e\ent so unexpected. No extraordinary preparations could have been made by the mother country for the defence of this remote province. The army and navy could not have been reinforced and placed upon an esta- blishment adequate to the state of hostilities. At- tacked on all sides and threatened with an invasion COURT OF VICE-ADMIRALTY. from an enemy situated almost within sight of our own shores, our coasts and our vessels exposed to plunderers, there is occasion for every exertion and for the employment of every possible means for the protection of the country. This certainly does consti- tute a strong case of necessity and self-defence, and calls upon this Court to lend its aid by every mode within the compass of its legal powers. Under these circumstances a petition is delivered into this Court on behalf of the governor of the province and the commander in chief of the military forces/stating " that small arms at present are very much and im- mediately wanted for the defence of the province, and that a quantity of small arms are now on board the .ihips' of war and privateers belonging to the United States of America, and now held as prize in the cus- tody of this Court in consequence of the United States having declared war. He therefore p. ays that the Court will order the said small arms and ac- coutrements to be delivered for His Majesty's use and service to the ordnance storekeeper at Halifax, upon the proper officers in that department paying into the Court for the use of whoever hereafter ap- pear to be interested, whatever sum or sums of money it shall appear the said arms are worth upon a fair valuation thereof, to be made in the usual and customary manner." I am of opinion that the prayer of this petition under all the circumstances may be complied with. The mode of valuation and payment being previously approved of by the Court. The next petition is on behalf of Vice-Admiral Sawyer, commander in chief of His Majesty's naval forces upon this station. . ' . ' It states that " there is at present a great want of oak timber in His Majesty's naval yard at Halifax ; 3ah The C««i,pw, &c. Aufruit 7lh, \ n rM 'i'. > ii I r t 1 '^ 1 t I 1 MA I' I j!' I! 'I -'I ti '> , I "fit lul.A fifl! 3S4 CASES DETERMINED IN THE 111* Httgun 7th, ma. that there is a quantity of ship timber now laden on board of the schooner 'traveller, n vessel which is held in the custody of the Court as prize to His Ma- jesty in consequence of the United States of America having declared war against Great Britain. Which timber is much wanted and immediately for His Ma- jesty's naval service. He prays therefore that this Court will order all the timber laden on board the said schooner to be delivered for His Majesty's use and service io the naval storekeeper at Halifax upon the proper officer's depositing in this Court for the use of whoever may be hereafter interested, the full value of such timber when ascertained in the usual and customary manner." To this petition no objection can be made, upon the condition mentioned at to the last application. A third petition is from Vice-Admiral Sawyer, likewise stating " that in consequence of the United States having declared war, it iias been necessary for His Majesty's service that a prison ship should be provided for the safe keeping of prisoners of war, who are now become very numerous, that a ship called the Magnet, which is now held in the custody of this Court as a prize taken from the Americans is a ship well calculated for a prison ship, and that His Msjesty's service requires the said ship to be immedi- ately employed for that purpose, there being no other suitable vessel to be now obtained. He therefore prays that the said ship may be delivered over to such offi- cers as the said vice-admiral shall appoint to take charge of her for his majesty's use, upon the same terms as proposed in the other petition." This petition depends upion the same principles. A fourth petition is on behalf of the vice-admiral likewise, stating " that the United States having sud- denly doclared war against Hii Miy'wtj", thero ara COURT OF VICE-ADMIRALTY. not at present under his commaud a sufficient number of nhips of war to protect the trade of His Majest/s subjects against the depredations of the numerous ships of war and privateers which the enemj have fitted out, and great and heavy losses daily take place in consequence of the weak state of the squa- dron under his command. That His Majesty's ship Acii.s'r has lalely captured and sent into this port a private thip of war called the Curlew, which is now in the custody of this Court as a prize taken in war from the enemy, that the said vessel is well calculated for a cruiser against the enemy, and if immediately fitted out and sent to sea, would render good service to His Majesty a- well in protecting the trade of His subjects as annoyi--q" the enemy. That proposals have been made to the admiral ifor immediately fit- ting out, manning and sending this vessel to sea to cruize against the enemy. He therefore prays that the said privateer brig, with her guns, provisions, ammunition, tackle and apparel may be ordered to be delivered to the persons whom the admiral shall appoint to receive her, and fit her out as a cruizer, when the full value thereof upon an appraisement being made in the usual manner shall have been de- posited in the Court for the use of whoever may hereafter appear to be interested, and that the said vessel is immediately wanted for His Majesty's service." This petition is of a very dificrent description from the others. The vessel is not applied for to he employed in His Mqjestt/s immediate service, but to be delivered over to certain persons, who have made proposals to the admiral to fit her out, to man her, and to send her to cruize against the enemy ; namely, the United States who have just declared war ; that i«, in short, to be fitted out as a privateer. S«6 The CvRLiw, ttc A»gu$t 7tb| 1812. 1 .' V". i' t.'li! .r; I i 11 ,i '* i?pl 326 CASES DETERMINED IN THE Th« Cunmw, &c. Augutt 7th, 1812. ■ 4 1:111 . t Though the benefit which would accrue to His Majesl/9 service, in protecting the trade of his sub- jects, and annoying the enemj, may be a ground for this application, yet the thing proposed to be done, must be lawful in itself, before the Court can accede to it. By the law of nations, as well as the municipal law of this country, no private vessel can cruize against the enemy but under a lawful commission. The power of granting such commission is the right only of the Sovereign, or of those to whom he has deputed it. The lord high admiral, when there is one, and the lords commissioners of the Admiralty, who when there is no lord admiral are invested with his general rights, are the only persons to whom it is usual for the King to give authority to grant such commissions, by themselves or by such persons as they shall appoint. This commission to the Admiralty board is special, and is usually issued upon the order for general reprisals against each particular enemy. Under this commission the lords of the Admiralty direct their warrants to the governors of the colonies, and the Courts of Vice-Admiralty, authorizing them to grant letters of marque. No such warrant has been trans- mitted to this country. I am not informed therefore that there is any power in this country to authorize such hostile proceedings against the Americans as the fitting out of privateers. By the law of nations : If any private subjects cruize against the enemy without such commission they are liable to be treated as pirates*. How then can the Court grant the prayer of a petition, the pro- fessed object of which, is the performance of an act contrary to law ? It is the pride and glory of Great * Les subjects ne peuvent agir d'eux-memes, et il ne leur est pas perniis ne cdmmettre aucune hostility, sans ordre du Souverain. COURT OF VICE-ADMIRALTY. 'Britain that her conduct has always been guided by the strictest attention to the law of nations. Other states may have equalled her in bravery and military fame, but the justice of her views, and the scrupulous delicacy of her proceedings, places her upon an emi- nence highly exalted above all other nations. I hope that her purity will never be sullied by any departure from those principles, or that she should ever afford a just ground to the malignity of her enemies, who are too apt without any foundation to charge her with the violation of public law and acts of piratical nature. Whatever temporary inconveniences may en- sue, it is far better to submit to them, than to endeavour to prevent them by any objectionable means, such as sending out private vessels to cruize without a lawful commission. I feel it therefore to be the duty of that station in which I am here placed, to refuse the prayer of this petition. 33; The CvBLIW, &C. ilu^uit7th, 181!;. On the Petition of Sir John Warren, and Others. NowemSer 4th, 181$* Judgment — Dr. Croke. A PETITION has been presented on behalf of •^^ Admiral Sir John Warren, the commander in chief on this station, Vice-Admiral Sawyer, the late commander in chief, and all the officers on this sta- tion, who have sent in prizes since the declaration of war by the United States of America; praying, that upon certain grounds therein stated, the Court would order the cargoes of these vessels to be un- laden, and sold immediately ; and the ships, together Veisels and car- goes detained upon the Ameri- can declaration, and under the order in coun- cil 3lJulyl81S, could not be sold or hailed previous t■ • \ ii t 1 !l 111 'U 3^8 Petition of Sir A'otKmfter 4(h, IBIS. CASES DETERiMINED IN THE with the proo'eds of the cargoes to be placed in a - state of security, until His Majestys pleasure shall be known as to the ultimate disposal thereof. There is likewise a separate petition for delivering a vessel and cargo upon hail. This is a general application, and extends to all the prizes in the harbour ; but I am now informed by the king's advocate, in answer to the question, whether the consent of the claimants had been given' where then were claims, that it is meant to be conlincd to cases only in which there is no claim. The general question of delivering property upon bail, or selling it, in the intermediate time before the hearing of the cause, has already been fully consi- dered in the case of the Curlew, and the other appli- cations of a similar nature. It was there decided, upon principles of the law of nations, from the uni' form practice of courts of Admiraltyr, and parti- cularly upon the authority of the case of the Copen- haKcn, Mullens* that it was not the usage of the Court to grant such petitions without the consent of all parties. No proclamation having issued, and no prize act passed to transfer the right to prize from the Crown to the captors, tlieyr have not yet acquired, and judging from the experience of foVmer wars, it is even probable they never may acquire, any interest in many of these captures. They are not, therefore, such parties as by their consent could justify the Court m departing from the established practice. No such authority is given to the Court by the order in coun- cil of the 31st of July, which directs, that the com- manders of His Majesty's ships shall detain, and bring into port all American ships, and that the ut- most care should be taken for the preservation of • 3 Rob. 178. :l-'' Ijl^ COURT OP VICE-ADMIRALTY. all and every part of the caijfoes. To detain and preserve them the Court ia bound j but to deliver up. either upon bail, or by sale, is not only not (liret ted, hut app ars to me to be directly contrary to the urdefii. Thr Court cannot, upon any nugge%. lion that it would be ultimately beueicial to the par- ties who may eveutually be intitled, take upon itself to deviate fium the orders, and to substitute some- thing else in the place of what is there clearly en- joined. Upon general grounds, therefore, the Court would not feel itself authorized to accede to the prayer of this petition. But there may be special rea- sons, founded upon the particular state and situation of the vessels and cargoes, which may alter the case, and fake them out of the general rule. But no circumstances, however inconvenient, and even imperious, which naturally arise out of, and are umvoidahly incident to the execution of the order in council, can justify a deviation from it; because all such circumstances must necessarily have been fore- seen when the order was made, and must therefore have been comprehended within its scope and inten- tion Thus every detention of vessels and cargoes must be attended with some risk and danger, from winds, seas, and fire, and innumerable other accidents to which they are liable; the greatest care can scarcely prevent embezzlements : charpes and heavtf expenses roust be incurred in the detention and pre- servation of the property ; a loss by missing the pro- per times and seasons for a market would be very probable ; and since insurance, in any case, may be matter of prudence and discretion, not of necessity, the impossibility of obtaining it, or the extravagance of the premium, cannot take a case out of the general rale, since the parties may stand, as is not uusual with nerchants, their own iniofere. ^•e H! Petition of Sir ISiS. ';«! 1 < I i-i 330 CASKS DETKRMINKD IN THE Petition of Sir J.WAHIirN,lcC. Kovtmhfr 4th, 181«. W :H Ml These principles, which I trust are solid and well founded, will app ly|to the greater part of the al legations in this petition. To the second, that the risk will be much increased during the winter, as the ship keepers must have a constant fire on board. To the third— That there is good reason to believe the embezzle- ment already has been very great in some instances which have been discovered, and that this evil will undoubtedly greatly increase though every possible precaution should be taken. To the «/x/;j— that the change of waiters and ship-keepers on each vessel, in some instances, amount already to a large share of the gross value of the ship and cargo, and in all cases now amounts to a large sum of money, and will cause an enormous expense. To the seventh—th&t the greatest part of the prize cargoes, if sold, must be exported, as the province does not afford a con- sumption for the same, and the winter season is fast approaching, which will prevent such export before the spring, and should a sale of this property be made in the winter, the loss in point of value would certainly on that account be great. And to the eighth, that it is doubtful if insurance on the ships and cargoes in their present state could be effected, but if it could it certainly would be a most extravagant premium. But there are other parts of this petition which demand the most serious attention of the Court, under that clause of the order in council ; which di- rects that the utmost care be taken for all and every part of the cargoes on board, so that no damage or embezzlement whatever be sustained. The preamble of the petition states, that the prize ships and their cargoes, now lying in the port of Halifax, are not, in the petitioners* opinion, in a state of safe keeping. In the first article, it states that the ships are moored ' if COURT OF VICE-ADMIRALTT. at anchor in the harbour of Halifax, and arc daily subject to the risk of being driven on shore by gales of wind, and ice, in a particular manner during the winter; that the constant attending tu the mooring of the ships, and preventing them from getting foul, lias been already a heavy expense as well as trouble; and when the ships of w ir go to sea for the winter, it will be impossible to get men to perform that duty, 10 that the risk throughout the winter will be njuch increased, and indeed almost certain, for if one vessel should get adrift, she must run foul of others, so that it is almost impossible to calculate the extent of the danger, particularly when the bad and insufficient slate of the cables belonging to many of the said vessels is considered. In the fourth article, that the length of time that the sides and decks of the vessels have been exposed to the weather has made many of them leaky, and this is an evil daily encreasing, and must be highly detrimental to the cargoes on board, which are constantly receiving damage. In ihef^fth, that most, if not all of the cargoes, are of that de- scription that they will take great damage from being kept any length of time in a ship, and if continued, the event must be ruinous. The captors have certainly done their duty in bringing these circumstances before the Court; it is proper that they should be thoroughly examined into, and every precaution nsed for the safety and preserva- tion of the vessels and cargoes, which their nature and situation may require. I apprehend, therefore, that the Prince's order may be executed according to its true meaning and intention, effect given to each of the clauses contained in it, and that the Court would likewise be performing its general duty, by issuing coramissious for the purpose of ascertaining the exact itate of the property, and by making such further orders as may be necessary. 341 Petition of sir J W4MiirN,8tc, November 4th, lata. .(. ' 'i ' ill i li iii I' III 3Sfl Petition of Sir J.Wa:iiicn,jcc. KovOnber 4tli, 1819. CASES DETERMINED IN THE lit. I decree, therefore, a commission to proper persons of whom the master shipwright, and the mas- ter attendant of His Majesty's naval yard to be two, to inspect and examine the several ships and vesseli so captured and brought into the harbour of Halifax respeclinj^ the several matters and things alledged in the said petition, and to report in writing respect- ing the same, slating the present state and situation of the said vessels, whether they are in a state of safety or otherwise; and whether in their opinion any other, or what places may be found for their better security, within the harbour of Halifax, the bason, or elsewhere; and whether any, and what precautions ought to be employed for their bet- ter preservation and security. 2dly. A commission, or commissions, to examine the state of the cargoes, and to report which of them may be safely entrusted on board the vessels, and which from the leakiness of the vessels, or other rea- sons, ought to be unladen and deposited in stores. 3dly. And, thirdly to ascertain what cargoes or parts of cargoes, are in a perishable and perishing state, and therefore ought to be immediately sold. Upon the return of these commissioners, the vessels were directed to be removed to a part of the harbour recommended by the commissioners, and to be safely moored; and new cables, and whatever else was wanting lo be purchased. A considerable part of the cargoes being found to be perishing was ordered to be sold, a few more put into warehouses, and the remainder were left on board the vessels. Commis- sioners were afterwards appointed by the crown to the care and management of these vesseli, which hav- ing been taken before the order for reprisals (13th of October,) belonged to His Majesty jure coronie. See Pob:, Case on the Petition of William DouA-las. kc. COURT OF VICE-ADMIRALTY. 194 II if The ZoDiACK, Hague. Aowmtw lotb, rpHE King's Advocate and Crofton Uniackefor the violation of* ■'■ Caplors.^Tlm ship has been captured under the 'c^^r'lZ' Prince Regent's order for the detention of ^mmcan j^J""^** "''""'• property, and no restitution of her can take place un- less she can divest herself of her American character by means of some official license or passport of protec* tion. She was proceeding with a cargo of provisions from New York to Lisboii when detained by His Majesty's schooner ^/p;ic« ; and it will perhaps be contended on the part of the claimants, that at the time of capture, the Alphea was samng under a flag of truce to protect her against the cruizers of America, and was therefore bound to refrain from any hostile attack of the ships of that country. But a question may arise how far the Alphea, being a ship of war, acting under the orders of her government, could have been justified in refraining from this cap- ture. She left England completely equipped for hostility, and has never departed from that character. The American government by affording her a passl port or protection, could not change that character, especially as such protection was afforded more for the benefit of that government, than from any view of urbanity or reconciliation towards Great Britain, By an act of congress, all vessels carrying dispatches between the two countries, were entitled to favour and protection, but that act did not pass upon the application, or with the knowledge of the British Government; it was created solely for the conve- nieace and advantage of America; under this act the Alphta received her passport, and was suffered to re- main a short time at New York, but sailed without 334 TheZoDiiicK. NovemhtT 10th, 1813. ]\ ^, I CASES DETERMINED IN THE any dispatches from New York for Halifax, and had none on board when she captured the Zodiack. She carried letters, it is true, to New York from Fal- mouth, in the capacity of a packet, but without any knowledgeof the war, until her arrival at New York, where the passport or flag of truce were in some measure imposed upon her. The commander of the Jlphca entered into no compact with the American government to refrain from hostilities, nor could such forbearance be required of her upon any principle of strict national law, as in the cases of cartels, or ships of a similar description, acting under the mutual compact of good faith of two belligerent powers. But at all events, the property must be condemned to the King in the first instance, and to that quarter the claimants or their government, may regularly and perhaps successfully apply for redress, if the capture should be considered improper or dishonourable. On the part of the claimants the Solicitor-general, and Rohie. — This is a case in which the faith and honour of the British government are particularly implicated. A ship of war belonging to His Ma- jesty, sailing under a flag of truce and protected against capture by a passport of the enemy, has thought fit to detain under the Prince Regent's late order an American ship bound from the port of New York, with provisions, to the port of Lisbon. Upon no principle whatever of national justice can a cap- ture of the sort be justified, and so far from the rule which has been so faithfully applied to cartels and ships of like nature not applying in the present in- stance, it should be dealt to this claimant with double attention and indulgence. The Alphea had not only displayed her flag of truce for the very purpose of securing that treatment which, it seems, she was unwilling to grant to others, but the com- b; s ' i -; I COURT OF VlCE.x\DMIIiALTY. 335 niandcr of her had in Iiis possession at the period of The Zodiac. capture, a rertificate of protection from the verj' na- tion to which the object of his aggression belonged. '^"^J'/s!""'' It is immaterial whether or not she sailed from Eng- land with hostile views, or when she heard of the American declaration of war. It is also immaterial in what mode, or under what act of the American government she obtained her passport, as the acknow- ledged statement of facts, as wdl as the depositions in the cause, put it beyond a doubt, that upon her voyage from Mio York to Halifax, she was using her flag of truce and passport for the purposes of protec- tion. Nor is it of any moment to enquire whether or not she had any letters or dispatches on board at the time that she captured the Zodiack. She certainly availed herself of the character of a packet while at New York, and continued to in that character until her arrival at Halifax. Under these circumstances, therefore, so far from its having been the official duty of her commander to pursue a hostile line of conduct under the order of the Prince Regent, an imperative obligation devolved upon him from the honour of his own government, as well as the law of nations, to refrain from hostile operations of every sort against the property of Americans. With the United States he should have considered him- self at perfect peace. Any capture therefore of an American ship by the Jlphea while in this condition, must have been dishonourable, unjust, and illegal, and so strongly do the decisions in the support of this principle apply to the present case, that it is not in the power of legal inge- nuity to raise a distinction in favour of the captors. The case of the Mart/, Folger, (5th Rob.) contains the fullest reasoning in aid and explanation of this '4 \ '1 If '1 hi I ill i ■ ; Ml Ml i'l i t 336 CASES DETERMINED IN THE i fV 11 i'l ""'°''""- important doctrine. (It was the cae of a rescue of ifovmber loth, British prisoners while under cartel.) It is there «i*. said by the learned judge : " Here is a surprisim and retaking that has been effected through a viola- tion of contract, by persons pretending to act upon rights which they had parted with, as well by their own engagement, as by the nature of the situation in which they were placed. Such an act is essentially invalid, and can have no legal consequence attached to it, cithft for the benefit of those persons them- selves, or for the benefit of others who may claim through them." This judicial remark is alsoadirect and forcible answer to the objection, on the part of the captors, that the property should at all events be condemned to the King, upon whose mercy or gene- rosity the claimants may rely for future redress. But the act^ of capture being '' essentially invalid and illegal," the property is not only not liable to for- feiture in any way, but is entitled to an immediate de- cree of restitution that it may be restored without delay to its former state of safety. If this be the law and justice of the case, of which there can be little or no doubt, the claimants are also entitled to da- mages for the losses, costs, and expenses they have incurred by the illegal detention of this ship and her cargo. Against this demand neither ignorance nor necessity can be pleaded, and, although, by the gross management of the ship after ber capture, the claim- ants have suffered materially from shipwreck, as well as other disasters, they are not disposed to he vin- dictive in this pursuit, all thfiy require is a fair and full compensation for the actual loss and expenses they have incurred, and this it is hoped, they will obtain, for the honour of the British government, under whose authority this Court sits for the ad- COURT OF VICE-ADMIRALTY. iniuistratiou of national justice, even to an enemy TheZo who lias been aggrieved by an undue exercise of the rights of war. The King's Advocate in replij. — However inclined the Court ma^ be to restore this ship and her cargo to theclaimants upon the grounds adopted by their counsel, it cannot legally sustain the claim for damages — such claim is an action which no enemy can be allowed to pursue in any tribunal of the British dominions. Judgment. — Dr. Croke. The Zodiack was taken by his Majesty's schooner ihe Alphen, commanded by Lieutenant Jones, upon a voyage from New York to Lisbon, with a cargo of flour and rice. A claim has been given by James Hague, the master, for the vessel, as the sole property of Jonathan Ogden, of New York, a subject of the United States ; and for the cargo, generally, on be- half of Mr. Ogden, and all such persons as shall appear to be interested ; not being able to speak po- sitively to the ownership, the shipment having been made by F. J. Sampayo, a natural born subject of Portugal, and consigned to a Portuguese bouse, at Lisbon.— He proceeds to state, " That the schooner by which he was taken, was a vessel which had carried dispatches from the officers of government at Halifax, to the American Government, and had, for many days previous to the sailing of the Zodiack, en- joyed the rights and privileges of a flag of truce, under the Act of Congress protecting vessels of her description from seizure, by American ships of war, and he believes that she sailed under a protection from the American government; being thereby se- cured against capture by any ships belonging to the United States o^ America " and he concludes by praying restitution and damages. z 337 DIACK. November lOtli, 1812. (t I II Ifl'fl 1!! Ail m 338 Tlie ZoDiAc'K, Xovemher lOth, 1012. j; i'. |i, I, I CASES de'jt:rmined in the If this was merely a claim as for American pro- perty, this Court would certainly not proceed to ad- judicate upon it, because in the hostile, or, at least, ambiguous state of the two countries, under his Royal Highness the Prince Regent's Order in Council, to detain and bring into port all vessels belonging to citizens of the United Slates, without giving any authority to condemn them, no property of that description could either be condemned or re- stored. But upon the master's allegation, that the capturing vessel was sailing under a passport, or flag of truce, a question of a very different nature arises, not whether American property, as such, is liable to seizure, condemnation, or otherwise; but whether the Alphea, under the circumstances in which she was placed, had any right to detain this vessel, and to bring her into port in any case, either generally, or even under the Orders in Council, which issued be- fore the capture, but were not known to Lieutenant Jones. This is a question of an interlocutory kind, previous to any adjudication upon the property; and if it shall appear that the capture was improperly made and ought to be restored, the Court will decree restitution, or otherwise it will remand the ship and cargo to safe custody under the order for detention. It has been said, on behalf of the captor, that if this capture should prove to have been illegally made, still that the claimant, as an enemy, could not be entitled to receive it, but that as in other cases of captures where the captor was disqualified from taking, it must go to the King, with whom it would remain to make restitution to the claimant. That the claimant in this case, as an enemy, is not incapa- citated from suing, or receiving restitution, has al- ready been determined b) tl:.; Court upon the former hearing, upon the return to the monition to proceed m COURT OF VfCE-ADMIRALTY. 339 to trial, and likewise with respect to the propriety of Thc7oD,ACK. an intervention on the part of the Crown. I shall only observe therefore at present, that there is an ""'''tk''"' essential difference betxveen the cases of non-com- missioned vessels and of forfeitures for misconduct, which have been now referred to, and this case, in- asmuch as that in those cases, the general right to make the capture from the enemy was not called in question, a general condemnation was supposed, and the only point was to determine to whom the con- demned property should hdors;. In this case it is the question whether a condemnation could take place at all. If the vessel was illegally captured, neither the captor nor the Crown can have any right or interest in it. Those were municipal questions as between British parties, this is a question upon the law of nations, between country and country. It has been denied likewise that the Court could give, or the claimant could recover damages. But, surely, if the Court has cognizance of the principal cause, it must have equally a jurisdiction over all the incidents connected with it. If the party is not dis- ' qualified from recovering his property, he must be equally capable of receiving a compensation for an injury done to it. The first and principal point, in this case, is to as- certain the real character of the Alphea, as it appears in evidence. ■ Upon the standing interrogatories, Hague, the master, swears " That the schooner, at the time of capturing his ship, was actually sailing under a flag of truce, with dispatches from the American Govern- ment to the British Government." George Brown, the first mate, has been examined upon the claim, and he deposes, " To his having seen a passport in possession of Lieut. Jo7ies. which was z2 liii M ■ I iipl 'Ml'' *'. i m 1 I' PI 1 :l 340 The Zodiacs, NoKtnber lOtli, 1819. ■il CASES DRTEHMINKD IN THE signed by Mr. Monroe, ihc. Secretary of State to the Government of the United Stales, which deponent read ; the 8uhstaiice and purport of it was to protect said schooner Alplna, on her return from New York to Halifax, with dispatclies for the Government at Halifax, and he helieves that she had for several days previous to the sailing of the Zodiack enjoyed the rights and privileges of a flag of truce under the Act of Congress protecting vessels of her descrip- tion from seizure by American vessels. He is clear and positive the Alphca sailed under the protection of the American Government^ from Mr. Jones per- mitting him to read the passport, and from his, Mr. Jones's, declaration of being so protected by it, as well as the vessel under his command." — He farther says : " that on the day preceding the arrival of tlie Aljthea in this port, to wit, on Wednesday the fifth of August, they were chased by an American priva- teer schooner, which they supposed to be the Teaztr, and Lieutenant Jones finding that the said privateer was coming up with the Alpliea very fast, called the deponent up from below, and told him the privateer was then in chase of him, but that he, Lieut. Jones, could not take her, if she came up, nor the privateer take him, as the Alphea was sailing under a flag of truce. — The deponent observed at the time, that the white flag was bent already to hoist on the haulyards at the foremast, but deponent did not see it at any time hoisted at the masthead, nor did he ever see it but on this occasion, which was the first time they saw an American ship. Lieut. Jones, some time after the privateer was gaining on him, ordered the flag of truce to be got ready, in the hearing and presence of deponent, and then ordered this deponent, and all the crew of the Zodiack below, and some time after, as deponent has since been informed, the white flag was ,.! COUIIT OF VICE-ADMIRALTV. hoisted at her foremast head, and kept there till the privateer sheered oft*, when he was called up and found the privateer steering away. — He further says, that the only lime Lieut. Jonefi infornied him that the Alphca was a flag of truce, or permitted him to read the passport, was when the privateer was in chase of them." — This is conhrmcd by the deposition of Wil- liam liai/, the second mate, with the additional cir- cumstance, that " the 'White Jing was hoisted before he was ordered below" — An affidavit has been made liy Vice- Admiral Scnvi/cr, then Commander in Chief upon this station.— He states, that, " In the month of August last, his Majesty's schooner Alphea, com- manded by Lieut. William Jones, arrived in this harbour, having a passport from the American Govern- ment to protect her from the ships of war of that na- tion. — That (he said schooner, as the said Lieut. Jones informed deponent, was protected, and in every re- spect consideied, while remaining in New York, as a flag of truce, and this deponent also considered the said schooner, to all intents and purposes, to be a vessel of that character, and description.-— That upon the said Lieut. Jones's informing him that he had captured the said ship, the deponent expressed in strong terms his surprise and displeasure at the im- proper conduct of the said Lieut. Jones, for so doing, and on the arrival of the said ship Zodiack, at Liver- pool, in this province, the deponent directed that every possible step should be forthwith taken for the immediate restitution of the said ship and cargo." Besides these depositions, there is a statement of facts which has been agreed to on both sides, it admits " That the schooner Alphea is an armed cutter belonging to the King, and commissioned as a vessel of war in his Majesty's service, and commanded by William Jones, a lieutenant in the Royal Navy. ^ 341 Novtmher lOtli, 1813. IM'l ( ' f, I I < U m 11" t i W'l 342 The ZooiitcK. Kovemher ioid CASES 1>ETKRWINED IN TIJK That the scliooner AlpJien, in obedience 1<> an order from the Aflmiralty, received the June mails from the General Pt)st Office at ialnwufh, with an order to deliver the same at Bermuda, New York and Halifax. Tbo.i when Lii'ut. Jones sailed from Fngland he lihcw nothing of (he United States of America having declared war against England, nor was it known at Bermuda, when he arrived there, and delivered the mail for that island ; and that he sailed from Ber- muda without a'j knowledge of the war with Ame- rica. I'hat on j!:oin<>^ into New York, he heard of the American war, being boarded by an officer be- longing to a ship of war of the United States, and, after having his papers examined by the officer, he was informed, the day after his arrival, that as he had brought a mail from England, the Government of the United States would allow him to deliver the same, and to rem lin without molestation ; that, in a few days afterwards, he received a mail for Halifax, toi'-ether with a passport from the Government of the United States, allowing him to depart, and to pursue his voyage to Halifax, witliout mole^ation from the ships of war, or privateers of the United States, until his arrival at Halifax. That shortly afterwards he sailed from New York to Halifax, captured the ship Zodiack, m the course of his voyage, and r/rived safe cit Halifax. That the said schooner had during the whole of the aforesaid voyage, the usual number of guns and arms on board, that belonged to vessels of her class, with ammunition and warlike stores of all .sorts, proper for such a vessel in his Majesty's ser- vice." Before I proceed further io the consideration of this evidence, I must dispose of some arguments which have been advanced in favour of the captor ; ihat it was his duty in every case to take Jmcrican COURT OF VfCE-ADMIRALlT. 343 Notemhcr lOth, ^^hips by liis general rommission as an armed vessel, thcZodiack the United States haviuo- declared war, and likewise under the Orders in Council, to detain all American property. Now, not to mention that Lieut. Jonea Ji;ul no commission or authority against the United States, us the declaration of war was not known in Eii,ily accordinjr to the usual prac- tice of war, and that the Orders in Council, like all other laws and authorities given, must be subject to the usual modes of interpretation. There must be many tacit exceptions to the orders for detention. They could not command impossibilities, either na- tural or moral. It never could be understood to be the Mitention of the Prince Regent to authorize any proceedings in violation of the law of nations nor would they atford any justification for them. It is not necessary to consider the original state of this vessel. The question is not, under what orders she sailed from England, or arrived at New York, but what was her character at the time of making the capture. By the whole tenor, then, of this uncontradicted testimony, it is fully established, that at the time of seizing this vessel, the Alphca was sailing under a passport, which had been granted by the proper au- thorities of the American Government, which had been iccepted, and has been distinctly admitted, by the commander of the vessel. That he had availed himself of the benefit of it, not only whilst he con- tinued at New York, where he would otherwise have been seized, but likewise upon his voyage to protect himself against an enemy's cruizer. And that the ■r;-B'i [• n ' '' r' lii! 341 CASES DKTERMINF.D FN 1111', Tiie ZoDiAci. validity of (lie passport Ims been acknowlcilgod hy November loih, the Coinuiaiidcr in Chief upon the Ktaliori. '*^-' Under facts so clearly proved, this case becomes subject to the application of those principles of pub- lic law which relate to captures made by vessels »| I f liaviiiji:^ a passport, or safe conduct. ■ ' W liat these are in general, is so well, and so com- monly understood, that it is scarcely necessary to enter into any long discussion concerning them. No officer in his Majesty's service can be ignorant of them. It is universally known that, by passports, privileges are granted by nations at war to parti- cular ships, for their mutual convenience. Thev arc highly useful, since they contribute to soften the severities of war, and to promote tlic restoration of peace. They are therefore observed by all civilized nations with scrupulous delicacy and correctness. They are certainly in the nature of compacts, be- cause there is something to be done, or submitted to, on both sides, and one nation cannot, by any acts, bind another, without its own consent. They may be therefore, and frequently are, the subject of treaties, which must then be punctually observed. But it is not necessary that there should be any express agree- ment between the two nations in question, much less any particular contract entered into wilh the persons immediately concerned. They are founded upon a compact of which the terms are partly expressed, and partly understood from general usage, and they de- pend upon the established conventional law of na- tions. To a vessel thus employed, in a communica- tion between the two countries, with a passport, protection from capture is granted by the one nation, and the other engages that the vessel employed shall abstain from all acts of hostility. These must be the conditions necessarily understood^ for othervi'ise such ''Tl . COURT OF VICK-ADMIRALTV. 345 Nnvemhrr totli, lUlV. vessels N^'ould thereby be only ena1)l('(i, under tlie TiicZooiAct. protection, to annoy more eflertually the protecting country, and without those conditions, understood or expressed, no passports would ever be jijranted, and nations at war would lose the benefit derived from lliem. Since then to eirect the intended object the privi- lo ' Ransom Art, 2ii Geo. III. c. S,"), aii(i I'rize act.s ilo not extt'iifl to n> punljases of vessels not seized as prize. Domieil con- stituted by three years re- sidenee and a longer tniccr- tain contiuii- nncc. ^ CLAIM was -iven by Osimld Lawson, as a subject of his Britannic Majesty, uiirj as master of the ves.sel oh behalf nf himself for ti-e schooner and cargo, being- flour, peas, and beans. He stated that he was born at MeivvT/, in heiaml, which he left three years ago, and proceeded to Vir^iuin, for the purpose of settling- llie estate oi David Law son his brother, who died there; that the estate stil! re-' mams nnsettled, but as soon as it is settled he in- tends to return to his native country. Jn Janvary last he purchased the schooner at Norfolk, in yir^ymia, from Richard Billings, an Enrrlishman. ' In Jannary took on board at Noijolk a cargo of tobacco, naval stores, cS^c. on fr« i-ht, the owners residing- at Aor/o//f appointed him consignee, and directed him h) proceed to Barhadoes, there be sold the principal part of the cargo; the remain- der with other articles taken on board at Barhadoes, he carried on freight to Gundaloiipc, in part of pay- inent; took more on board on freight; sailed for Hul,Ja.c about tlie 2()th 3Iay, but not having re- ceived any information from the owners of the cni-o at ^mJo^k as to the names of the persons at if«/£i; to whom he should deliver the sugar, he resolved to go to the mouth of the Chesapeake bav, and dis- patch one of his own crew to Norjolh; with a letter to the owners of the sugar, to inform him to whom he should deliver the sugar at Hahfax. There she was seized on the 24th Jnne by an American revc nue cutter from Norfolk, and was libelled in the district COURT OF VICE-ADMIRALTY. court of Virginia, for a breach of the non-importa- tion act. On the Otij of ./«/y, in a Court at Williamshirgh, it was aj^rced that the vessel should be sohl by the Marshal, and the proceeds lodged in the Registry. She was sold, and purchased in for him, on the 25thof./«/y, by Willinm T/iompsou his a;ust. On the part of the Captors the King's Advocate, and Uniacke contendcdr-That the claimant, who appears a British subject, in this cause, cannot be considered as such, his domicil having been })aid for several yeais, in the United States of America. lie Mas engaged in trade as an American at the time of the capture, and was then sailing under American colours, though possessed of a JJrilish register, in which he appears to be the owner of the ship. There is much deception in every part of the case; the papers are in general false, and the whole concern is enveloped in mystery and double dealing. Added to all this, the ship was seized at Norfolk for a breach of some law or regulation of the States, or i)erliaps as British property, claimed by Mr. Lawson as an American., and afterwards virtually ransomed by him in violation of the Pri/e Act. Upon these several grounds he cannot be entitled to restitution or further proof. The Solicitor General for the Claimant contended. That admitting the claimant to have been residing two or three years in Norfolk, previous to the American declaration of war, such residence was for a particular and temporary purpose, uncon- nected with views of trade, and not completed at the time of the declaration of war. That the claim- ant is a British born subject, and should be al- lowed a reasonable time for making his election iu the present ambiguous state of affairs, either to re- main in America, or to prepare for a return to his native country, in the event of war being declared by his own government against the United States oi America. That should a determined war exist be^ !i mvtVV OF VICK-ADMIRALTY. twpoi, the two coiDtrios, i.e has declared his inten- tion of rLtnrning home, and indeed, this is, at all events, h.s resolution, when the business which carried hnn to America is completed. The decep- tion and mystery alluded to in this case are per- tc.'tly consistent Avith r|esii.„.s of innocence and good faith on the part of the claimant. The falsity of his papers as well as his flai? was intended as an miposiiion upon Jmerka7i cruizers. The fraud, therefore, is justifiable, and the claimant entitled to (urther proof, upon all these points, if not to the restitution of his property. With regard to the al- ledgod ransom of the ship, no act of the claimant in tliat transaction can be termed a ransom, which can only apply to cases of prize captured by the enemy. .TuDGMENT— jDr. Croke^ 'J^his vessel and cargo are claimed as British pro- perty. If they shall prove to be so the party will he nititled to restitution, otherwise they must be rananded to safe custody under the Orders in (x)uncilj as American property. All arguments deduced from the register may be at once dismissed. Whether this document* has been nnj)roperly obtained, or whether the vessel was Hititled to it, are immaterial considerations, for all the Acts of Parliament by which registers are regulated, relate only to the commerce withm the British dominions, not to a trade like this between foreign countries. It was argued on the part of the captors, that the repurchase of this vessel after it had been seized in the United States amounted to a ransom, and came withm the provisions of the Act 49 Geo lU and indeed, under the authority of the case of 2 a S5S The Schooner Pathiot. l^'vnmher 2J, i' I m ■ ■ f 1 'l^^l H^H 1 i 11 1 ^K^B 354 CASES DETERMINED IN THE jrhe >*»■!> Mil ■■ I ■ IM — IBU. Jlfwclock against 7iot'/iM'f>or/ (8 T. R. 208.) I slionld li()Ul tlial u repurchase ofa vessel before coiidenma- tion, imder tlie interlociilory decree of a Prize Court must be considered as a ransom, and would subject the party to all the effects of that statute. But it a|!plie,s only to cases where the vessel has been sei.::fd as prize, on account of hostilities, not Avliere the seizure has been made upon other grounds, as for a breach of revenue laws for in- stance. Now in the prest;nt case the Master swears that she was seized for a breach of the Non-Inter- course Laws. It does not appear from the pro- ceed ip!;s amongst the papers, on what ground the jirosecudou was commenced, and therefore I think the Court is not sufficiently in possession of the facis, to ui^cide upon them, if it should be neces- sary. Very great doubts may be entertained with re- .spect to the real property. From the mode iu V, iiicjj tlie vessel was repurchased from the mariners, in which Thompson managed every thing relating to the cargo, and from the evidence both of the mas- ter and the mate, there is great reason to believe that he was owner, in part at least. But withoiit entering into this point, allowing the facts to be as stated iu the claim, and that Lawson was the un- disputed owner of ship and cargo, it becomes a question upon his national character, this is clear. A British subject may, indeed, have a temporary residence iu the enemy's country, for a special jiiaivose, and Luivson swears that he went to Ame- ri'-a merely to settle his brother's affairs, and in- tci.'.ted Mj return when they were completed. But »ic ir.stiince can be found in which property was resio/ed, >. here a man had resided for three years, with iiu indeterminate period of future residence to COURT OF ViCE-ADMIRALTY. be added to it. He has likewise been engaged '. traffic unconnected with his brother's concerns. He bought this vessel, and employed her in freight- ing American goods. If, indeed, he had intended to return to Great Jiritain in this voyage, he might have uivested his funds in a cargo, for'the purpose of vv.th.lrawing it, with himself, to his native coun- try. But no such design appears; he does not in- timate that such was his iiitention, and as he states that he proposed to continue in the United States till his brother's aflairs were wound up, which was not yet done, it was evidently his intention to re- turn with his vessel to the United States, which was stdl to continue in carrying on an American trade, not connected uith his brother's concerns, and after hostilities had commenced. 1 condemn the ship and cargo. S5S The Sclioonrr I'atijiot. " ' • I^ ovemi.tr 2il, 1U12. 'i The Abigail, Johnson ry^ the part of the Captors, the Kings Advocate, ^^ and Crofton Uniacke.-JWh ship is claimed by the enemy, under a protecting licence granted to Sa- mud Williams, Esq. of Lotidon, and not to any one of the several claimants of the ship or cargo. She was captured by an American Privateer, on her voyage from Liverpool to Norfolk, on the ground of her having the licence on hoard as a British passport, and was recaptured by Sir John Jieres- ford, in the Poicliers, who brought her to this port for adjudication. At all events, the captors are entitled to salvage, the property having l)eea put in jeopardy by the capture. It is true Mr. Ma- 2 A 2 Vov. 2l8t, Licence. Ex- porter neither larouijht into this port for adjudication, and an attempt is now made not only to obtain salvage for re-capture, but to condemn the ship and cargo as the property of the enemy for an abuse of the licence. Upon the t»riii- cipal grouuil the raptors cannot be serious in the prosecution, and as to the question of salvaiie, so tar from any merit appearing in their conduct upon which to found it, it Mas the duty of the Poictiers to have facilitated the continuance of the ship s voy- age, after the re-capture, as the licence was still in operation and the capture by the privateer i (udd not afl'ect its validity. Indeed, the interference of tlie Poiciicrs wns no boon to the ship, for the prize crew of the privateer were carrying her to a port of the United Slates, in which their difi'erences would have been adjusted, ai]d, if she were now restored, she must pursue her voyage to the very port, perhaps, to which the privateer's crew were conducting her. But no injury wotdd have been sustained by her, even through the laws of her own country (a question in which the re-captor has no coiK;ern), as 3Ir. Madison has recommended the peculiar situation of these licensed ships to the consideration of Congress. This is certainly a case, upon the point of salvage, prirntt impressionis, but not attended with much diiiiculty, there being 357 The Abii^ail. Piov. '.'t*t, s^Td •fc^ "%. ,%. IMAGE EVALUATION TEST TARGET (MT-3) J o 1.0 I.I s «■ iiii^ Ul Nil 2.0 1.8 L25 1.4 1.6 ^ -^ 6" — ► ';^ V TN :v 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 aes CASES DtJTERMINED IN THE ffie Abigail,. Nor. 21st, 1813. no fact upon which any ehiini of meritorious con* duct, on the part of the re-captors, can be founded, consistent vvilii those equitable rules which have been established in all general cases of reward for ser- vices rendered by re-caplure. JuDGMENT.-'-J)r, CroJce, This ship was taken by the Poictiers, Sir John P. Beresjord, commander. She was claiujed by the Master for Paul Simpson of Newbury Port, and the cargo, consisting- of dry goods, salt, earthen "Uare, and coals, loaded at Liverpool^ for Pmd Simpson^ Messrs. Leach and Graham of Virginia^ and others. She sailed on the 12th of Augusl, 18l2j bound to Norfolk in Virginia, under a li- cence from the British Secretary of Slate. On the 16th of September she was boarded by an Antericun privateer, called the First Consul, which took pos- Kession of her, s;M)t an officer and men on boanf, and directed them to proceed to Porlsnioutli in New Hampshire. On the 21st of September, slie was retaken by the J^'oictie-rs, and sent to Halifax. The licence was dated the 2:)d of Jnlj/ iai2, and signed >Sidmoiith. It was giaiited to S. Williams^ and the opeiaiiv.' words wert? " we of waror privateer, on ac- count of any hostilities that may exist during the time of the said voyage, and during her return to Liverpool, with the said cargo, in case she should tiot be permitted to land in the United States. Pro :ii COUliT OF VICE-ADMIRALTY. 359 vided tlie vessel shall clear before' the l/ith of August, and to last for one voyage only". Indorsed Mas a clearance frotn the Custom Uouise at Liverpool, dated the 8th nf August, and annexed was the or- der in council for the licence of the 23d oi July, and likewise a release hy the Marshal from the embargo imposed on the .*> 1 st ./w/^, under the order of the 1st of Auirusl, as to licensed shi Th t\ dislin(M ps. this questions First, whether the ship and cargo are liable to seizure and detention, under the Prince Regent's Orders in Council, notwithstanding a licence which was on board ; and, secondly, if not liable to detention, whether the captors are entitled to salvage for recovering the property from an Ame- rican privateer. U|)on the first question it has been argued that it is doubtful whether this is the vessel for which the licence was granted, on account of a variation in the tonnage between the licence, and the certifi- cate of the Custom House at Livcrpoof, which is indorsed upon the back of it. In the licence .she is described as a vessel of 309 tons, in the certifi- cate 295 tons. The diflierence is only fourteen tons, and when it is consideretl that various modes of measuring lead to difi'erent results, and that even in reducing to j)ractice the same rules of admea- surement, though in theory nuithemalicaliy exact, some small error may be committed without any intention of fraud, the variation is too trilling to sup[)ort a conclusion that this is not the vessel to which the licence was granted. The identity of the vessel is sulliciently [iicived upon other grounds. The Abiiiun is tiroved to have been always her name, and the saiue master whv> js specided in the hcniC, vvJiS i.ppoinied lo the conTniauJ i.oiore ide vo'-.a* (■(..•Uinjei.ctti iu iae l ui'ed f^iu.d-j. -She ao- Tl.e Abicail. Ill ^ Nov. 2tst, 181». 4m^ I I pp. a it Utt \i In n II' ■ SCO The AuioAU. Aw. 21sf, 101 V(. CASES DETEftMINCi) IN JflK pears to have heon muln- lIuMlirortioHs ofthenor- - «un ^yIio oblaluod the lionuu., duri..^^ the time she ^vas ,u /s><^>-/«,/./, a.ul the sho,1„e.ss of the period between the date of the li..,.,,. a„d the <:learin.^ out being o«l> f, fortnight, ,,reeh,des all possibility of fraud, or that any iu.proper application eooM Jiave been niade of the docii lucut. It has been likewise contended, that Mr. W 7/- nams, to whou» the licen,e uos granted, was not (he exporter of these j,^o(,ds, and that name does not appear in the bills of la;ary to send across the Atlantic for further jjroof, perhaps it might not be required to put I he ])arlies to further delay and expence for that purpose ; but as the master is here, his affidavit may be satisfactory upon that head. 1 restore therefore the vessel and Simpson's part of the cargo, and direct further proof as to the re- mainder. (The master's affidavit, which was after- wards brought in, having been held to be satisfac- tory, the rest of the cargo was rest.jr of their own nr.tioii. lint if these particular cirenmslances are novil, they may be n lerred to principles which are old and \>ell established. For though the ship and cargo belong to an enemy, they are placed by the licence in a state of temporary neutrality. They are entitled to all the rights, and are liable to all the obligations of that state, and in deciding this " question the Court will api>ly the same rules as are applicable to vessels of a neutral character. Whilst sailing under this protection, if a British vessel has rendered this pro()erty siich services as would be a subject for salvage in a neutral case, the re-, captors would nndoubtedly be equally entitled in the present. Without any particular reference to the relatione of peace or war, nothing is more conformable to justice and equity than that. Where property has received a tnaterial benefit, as, for instanee, by be- ing saved from loss, the salvors should receive a fair com[)ensation for their services. 'J'he only point for in\estigation in this case is to ascertain whether tho pro[>erty by the recapture was pre- served from any real hazard of being lost to the owner, and that the risk was of such a nature that salvage can reasonably be claimed. The facts which relate to this claim were these. This vessel being bound to JSorJolk in Virginia, was captured by an American privateer, and under the charge of an officer and men was directed to proceed to Porlsmouth in New Hampshire. Mean- time she was retaken by the Poictiers and sent here. To determine the rpiestion of salvage we have pnly to enquire what danger of loss the property The Abigail. A'ot'. 21sti 1012. ||« Si t t |i||fl ; I ll^^l ! i It H^^^^^l 1; ,1 , 11 !iiil,^^H '•' ^t^l 11 1 ^^^^^1 ■ ') ^^H i : ' HI? ; p ''^^^1 4 1 ^;^tM Bffiflj^H '^' i MHj J^H ''^' i I^H '- i! 1 ^^^^^^H Ui k \ I^eS^^^I 364 Tbe ABIGAIt,. :i i .A CASES DETERMINED IN THE would have been liable to from this first capture, if the privateer had succeeded in sending it into Portsmouth. As the capture was made not by a piratical ves- sel, but by a ship of war, duly commissioned, the danger is not to be estimated by any vague suppo- sitions of lawless violence, but from the effects of a lawful power and authority applied to the case of seizure, to the consequence which would have en- sued from a prosecution in the courts of the United States, after their arrival in port. Upon what legal grounds then was the seizure made, and would a confiscation have necessarily followed ? The master deposes, ♦« that he believes that she was seized on suspicion of having British property on board." Now, on this ground it is clear that it was perfectly secure, because after the investigation which has taken place here, there is no proof, or even supposition, that the property is otherwise than American, as it is claimed, Neither was the property liable to have been con- demned as having been implicated in a trade with the enemy. As the vessel, and the funds with which the cargo was purchased were in England ^\ the declaration of war, the parties had a right to withdraw their property, and indeed it appears from the case of the Monsoon, and other vessels, which have arrived in the States under similar cir- cumstances, that they have not b^en proceeded against upon that ground. It only remains therefore, that a prosecution could have taken place against this vessel and cargo, for trading with Great Britain in violation of the non-intercourse laws. Supposing then, for the present, the fact that they would certainly have been confiscated, the case II I COURT OF VICE.ADMIRALTV. would stand thus : The property of a subject ot the United States, being found in the act of breaking the laws of his own country, is seized by a lawful authority of that country for the purpose of exact- ing the penalty, but is rescued by a Jiritish vessel. I do not see how a foreigner can be justified in thus interfering between the laws and the subjects of another country, or at least on what ground he can claim a reward for so doing. It was their own affair. It was the effect of municipal laws to which the party himself had given an implied assent by the consti- tution of his country. To prevent the operation of the laws of a state, and thus to become accessary to the violation of them, if not an immoral and un- justifiable act, yet certainly does not compose a case of such moral and legal merit as (o be entitled to a direct sanction from any tribunal which is guided by the general principles of justice and equity. The state of hostilities does not affect the question, because it bears no relation to the inter- nal regulations of the enemy's country, which are in no respect the object of any of the operations of war* This court cannot, indeed, iiiforce the laws of other countries, but there is a very material dif- ference between giving them effect, and granting a reward for impeding their operations. If a Bri- tish vessel was seized by the officers of the customs of an English port in the act of smuggling, and was rescued by a foreigner, could a court of justice be found in any civilized country, which would awaj-d salvage for the recovery? In that case, as in the present, the service might have been beneficial to the party, but it would not be of such a nature as to lay a foundation for a judicial reward. But it does not seem that any great danger of coDfificatton< was to be apprehended, since the par- 30ft Abioaiu Not. 81it, M' ijil I irml 1 1 i'lH '■ly m 1, J 1 f 366 The Adioail. Nov. i'lst, CASi:S DKTERMINlir) IN TMi: ties themselves had voluntarily cxposeii themselves - to the full hazard of it, Uy their ori-iiial voyaj;f. For It m admitted thai the vessel and caijio \xouU\ have heen ecjimlly liable to coidiscalion if they ur. rived At Norfolk aeeordina: to their destinalioii. Nay, it is even now alledjred by the partits, that if this vessel shonid be released, it is their intenlioa not to avail themselves of the permission in the licence to return to Liverpool, hut to pursue their original voya-e to Norjolk. And this is not in.pro- bable, because several vessels which have been dischargc-d by this court, under the same general circunjstances, have actually proceeded to the United Stales, hi fact, it appears that they had good reason to presmuc upon their safety. The president in bis last message to congress, of the 4th November, having taken into his consideration, the case of vessels like the present, which had been' in Englund when the revocation of the orders iu council took place, and were laden with JiviUsh nianufoctures, under an erroneous impression lliat thencm-intercourseact would iujinediately cease to operate, states expressly not only that " the tn a snry department was vested with powers to mitigate forfeitures, but that congress would interfere to make further provisions in their favour." Jiut what- ever was the degree of probability of conlisralioi,, the admission before stated seems to me to be ah- solutely conclusive in the case. U in pursuing their origmal intended voyage, before they had been seized by the American vessel, they had been met and taken by a British cruizer, coidd the captor have claim- ed salvage for rescuing them from a danger which they had voluntarily chosen to risk? Since then this vessel was not in greater danger of confiscation from being seized by an J^nericau privateer than if COURT or VICR-ADMIRALTY. 9m she had pencefully procefdod upon her original voyai^o, wlieii she woidd have been equally liable to have been seized by the oflicers in her own port, where was the service of tlu? re-coptnre ? I'he capture hy the privateer had made her situation neither better iiorworse, than it was previously. Jn both cases she wai subject to the opcjration of the same laws, was liable to the same forfeiture, and had the same pros- pects of release. The re-capture therefore, by the PoicUers rescued her from no dansjer which had been incurred by the first capture, and consequently can aflbrd no foundation for salvaije. This vessel having been found in the possession of an armed force of the enemy, it was the duty of the raptors to have brought her in. As Mr. WU- UamsH name, as the exporter of the cargo, did not appear in any of the papers, there was prima Jacia reason to conclude, that the terms of the licence had not been complied with. This is another jus- tilication of the captor^s conduct, which arising from the parties' own neglect, precludes all reason for complaint. I shall therefore direct tlie captor's costs to be paid by the claimants. The Sally Ann, James Day, Master. f\S behalf of the captors. The King's Advocate ^^ and Uniacke. — In this case, it becomes a ques- tion of great importance whether the licence of Mr. Foster, the only support of the claimant's title to restitution, can have the legal effect of protection. It is an ascertained truth that volumes of such li- censes have been obtained from the same source, and that much abuse and imposition has been prac- tised with them. The liceuce has no seal of an of- AllMiAIL. Nov. 12 1 It, lUlt. A OP. «7tli, 1812. Licence, grant* rd by uii aiu- biissador to an eneniy,to trade with tlie Bri- tish dominions, for tlic supply of troops^ void. 'M 'I' i.l r 36% Tlie 8Ati.T Ann. Nov. srtli, uis. CAJIES DETllRMiNnn IN Tlll-j ficial nature, nor is it in tin; kinj^'H name ; hiil If ji were complete in all respects of fornnunl atitJMii, ticity, it is defective upon principle, and is tlicidoie of no validity whatever. An induljj^mce or protrc- tion of tliiH nature can he granted hy Mis Majcsfy only, as has been rcpeat<;dly adjudged iuthcili(.|, Court of Admiralty, and theactof the4fttli of His present Majesty, which authorize ... the Vim; (Umu- cil to grant licences of protection is a confniuadoii of this principle. It is a power which the kin- rau- not delegate. An ambassador virtnte officii, can have no such authority, but allowing for a monifMil, that he possessed it, as the representative of His Majesty in a foreign state, the exercise of it must have been ineffectual, in the present instance, as Mr. Foster's functions in his capacity of ambassador or envoy in the United States, had ceased before the day on which he granted the licence. The Solicitor General for the claimant contended— That there were certain exceptions to the principle alluded to by the king's advocate upon the subject of licences. Strictly speaking, it was the peculiar province and prerogative of His Majesty to grant them: but, in distant partsof the world, and under particular and pressing circumstances, it was upon many grounds politic and proper, that the power in question should be delegated to persons in high of- ficial situations, who are in fact, as to many pur- poses, the representatives of Majesty. In the ap- pointment of cartels, flags of truce, and other simi- lar arrangements, the authority of His Majesty's officers has never been doubted ; and there seems no reasonable objections why an assumption of the royal authority upon the present occasion should not be allowed and sanctioned. The motive and object of such an assumption were beyond a doubt, mostlaud^ COURT or VICE-ADMIRALTY. able and politic, as Mr. Foster had in view the nt- curing of supplies to o.ir troops, throiij^h the assist- ance of those Amcricam who were inclined to ven- ture their property for the profit snch voyajres would afford thiMii, under the protection of hrilish li- cences. He therefore thought tit to pledge the mith and honour of his government in granting ihose licences, and those persons who have obtained them have reposed their couelaud of St. BurUwlomew\ and I do hereby request and require that you permit and sutler without capture or molestation, the said schooner S> illy Ann to yivncaed to the island afore- said, uith the said cargo, to he delivered to His Majeiiy's contractor for live bullocks and flour, aud i l!lMi COUllT OF VICE-ADMIRaLTY. 1 do further request that the said schooner Snlly Ann may be permitted to return to these States. Given under my Hand and Seal, at JSeio York, this seventh Day of July, |«I2. (i-. S.) « AUG. J. FOSTER.' Upon the magter's evidence, in which he has stated, that he believes the whole or some part of the cargo to belong to Mr. Stewart, the late British consul in the United States, there has been some discussion relating to the national character of that gentleman; if it were necessary to decide upon that question from the evidence that appears in this case, I fihould certainly be disposed to hold him to be domiciled in the United States, because the master deposes that he transacts more business there than any merchant in New London, but as no claim has been given for him, the court has only to determine upon the claim now before it, for persons admitting themselves to be Americans. This cargo consists of articles of three different kinds; those which are specified in Mr. Foster's licence ; those which are comprehended under the licence of Mr. Stewart ; and some goods of small Value which are included in neither. The whole of the property is liable to detention under the British orders iu council, unless it is pro- tected by licence. The licence, or certificate granted by Mr. Stewart has been abandoned as ineffectual, and therefore the two latter parts of the cargo are disposed of. The only question remaining therefore respects the articles specified in Mr. Foster's licence, consist- ing of flour and Indian corn. I do not think there is much foundation for the objections which have been made to the authen- 2 B ^ 371 The Samy Ann, JV«». '27 til. n I i J m i I Ml ■11* ri! ) ii' '. 'ii 37? f^A.Li.v Ann. ^ov. .7 lb, 181t. S'1 CASES DETERMINED IN THE ticjty of the licence itself, either from the seal, the form, the blanks, or other circumstances. There is rM)t only the internal evidence of Mr. Fosters un- disputed signature, but the additional testimony of a certificate from the Jhiiis/i consul, through whom the parties received it. And though other articles have been put on board which may be liable to for- feiture ; yet, under the principles'which have been laid down in various ca^es in the High Court of Adndralty, they cannot affect the goods which are specified in tlie licence, or deprive the parties of the benefit of it as far as it goes. Nor can much be ijiferred from some apparent contradictions in the master's evidence, with respect to the reality of the intended voyage to Barbadoes, since they may very naturally be accounted for from his having cleaied out with papers for Saint Bartholomew's, and which are acknowledged to be false, from the impossibility of clearing out from the United States to an eneujy's port, a falsification which has never been cof.sidered as materially affecting the good faith of a transaction. The vatidttj/ of this licence depends upon Mr. Fosters ])oner of granting it. The efect of it is to eijable an alien enemy to trade with the British dxjunnions. To grant such a licence is an high act of sovereignty, since it is a partial suspension of hostilities. It is founded upon the right of making peace and war, and it depends upon the same prin- ciples as granting licences to British subjects to trade with the enemy. In the case oUhe Angelique, aireug, before the Lords of Appeal, it was decided that " as it was in the power of the crown alone to declare war, so it rested with that authority only to dispense with the operations of war;' and they held that even, the Governor General of India had COURT OF yiCE-ADMIRALTY. no antliority to grant licences to that eflect* When His iVJajesty's uiiliappy infirmities ren(?s not appear to me to be a proceeding so iiiiicli coiiiiocted with the kiiovvij duties of a diplo- nmtic character; and so consistent with its obliga- tion as to sii|>port a presumption that it has been anthorized by any powers conferred by {lis Miijt'sty. It has been stated and argned, that by the decla- niti<»n of war the offi(;e of the Brilish £(mbassador entirely ceaseii, and was determined, and that he was therefore rediueH to the mere state of a private JirUisli snhjectonly continuing in the Lniled Stale* by suHerance, and divested of all diplomatic rights and powers. Upon ihis head in practice under the hw of nations there is a well known distinction ob- served. 'J'he Functions of an ambassador may be at an end, but his general right to protection, and his corresponding duties to ;he coimtry where he resides, continue to his departure, and until he has returned \o his own Sovereijrn. Though Mr. Foster therefore had ceased t<) be the appointed instrument of diplomatic c«>mmunication between the countries, his person was still sacred and his obligations to observe the respect due to the nation of the United States still continued with unabated force. If he could be considered as a private subject, he would have had no power to grant licences; if he was stilj bound to preserve the restrictions imf)08ed upon the character of an ambassador, such licences were not conformable to those known obligations. Unless the parties could have undertaken to bring evidence of a direct authority from His Majesty, either precedent or subsequent, or even of a common usage, to grant them licences ; this court can only be guided by such general principles. Under the pre- sumption which arises from them, it conceives it to he its duty to pronoqnce against the validity of the m The Sally Ann. I im iVoo. 37t)k i ylnH^^I t 1; ii{|iH }!• ■ 'liil^l 1 ^^^1 i , ;pt H i ( 1 1 ^^^^^^1 ' 1 ' 1 1 i n'^E^^^I t ; 1 l^^^^^l ; 1 i u 'i ! ^^^1 'i \ I hh^^I ifi f 1 m ^H 1 ''Mil 1 ' '*^^l i i^^^i i 1^1 "1 ff'i^^^^^i r 1 w^^^l y i, r^^^H t , i i I^H^^I ~T " i WHHI 1 t t i 'H 1 ti j-gl^^^B ^^^^^1 F I^BB m,i.LL 4 ^^^^^^1 378 The SAtl.Y Anr. Aw. S7th, CASES DETERMINED IN THE licence, and to condemn this ship and cai{«o to Iti^ Majesty. It is the business of parties who obtain docu- ments, to satisfy themselves of tl)eir ('(nracy, either from their own knowledge, or from the advice of per- Kons better informed. They take them at their own risk, and no imputation of bhime can be thrown npon those, by whom they are granted, in case they should prove insufficient for their protection. Yet as it might be considered as a case of some hanlship, if the claimants should have acted fwnd Jitfe, ninl( r a supposition that the public faith was eiijjaued, by the intervention of so high a person, though an error of that nature cannot give efl'ect to an instninient, which in itself is a nullity, I shall direct thtir costs to be paid out of the proceeds. N. B. This vessel and cargo, upon an a|)plication from Mr. Fosler, to Lord Caslkreao-h, were given up by the Lords Commissioners of His Majesty's Treasury, lo the owners, upon a report of the Kind's Advocate General, in which he says, " in ol>e(lieuce to your lordship's directions, I have eonsidered the case of the schooner, Salii/ Ann, and have the honor to report, that the judgment of the Vice-Admir-ilty Court, has been correct and proper ; as His Majesty's ministers abroad do not possess authority (injlens such a power is specially given to them) to grant licences, (.r t(» aflord protection from the ord nary conspquenees of hostilities; and it cannot fail to be attended with inconveniences, if such power is assumed, otherwise iliau under particular exigencies, not admitting of previous communicaiiuns wiih ilia Mfijisly'.-* goviMiunt ut." •• Liut Mu'er the circnnsstances of ihese cayps, I am humb > oi i pjwion, li.ui u v\jd be p i.per lutali COURT OF VIC'E-ADMinAl/rV. ri;;lit8 wliicli may have accrued to Mis Majosty, by the sel/iirt' of these shijis uiid cargoes, iiiMler the r'riiharj;'), shoiihl l)e released hy ()r(h'rs (Vorn the Lords (Joiiimissiouers of Uis iMaj«.slj'b Treasury." 579 The Stockholm, C7uip/i 'am. rpiUS vessel saih'd from St. linrthol Master. oncw! -*- the declarat after ion of war made hy llie United lUl.'. A SwedUh |);is». port not cfi|»- lonimblc to tlir aj;aii>st (ireat Jirdain was known there, "^•''.'.v "fitioi Aiiicli; 12, not Stales The proof of its boinjj Swedish fuoperiy was held to ruiiicicnt he sufficient. The j)as,N|)ort from the jfovernors of St. Bni'tkoloineivs, not huiti:^ the form prescribed verhatim in the treaty of l(i(il, Artich; XII. ai:d omitting the most essential parts of it, the ownef- si)ip of both ship and rar«j;-o, and tluit they belonj-ed only to Swedish subjects, the capt cicr the procla« matieu tor di«> tributiou. I 1 , 1 , 380 Th Malcolm. CASES DETERMIN/JO f\ THE without their due wn'glit \\\) his late proclamation, given all prizes to the laiccrs, the owners and crew of the Liverpool Packet, are legally and justly entitled to ruceive distributiou of the Littie Joe, and her cargo^ COURT OF VICE-ADMIRALTY. The King's Advocate, on the part of the Crown, contended—That whatever might be the h>gal effect of the commission, it could not extend to the giving a right of distribution of this prize to the captors. As far as it respects the claim of the Liverpool Packet, the commission is to all intents and purposes invalid, as there could be no other legal mode of granting letters of marque and reprisals but through the Admiralty. There are many of His Majesty's important prerogatives delegated to the governors of his provinces ; but that of making war or peace, of which the granting letters of marque and reprisal's is a serious branch, could never have been warranted by the general commission, or the instructions ac- companying it. The particular instruction alluded to, affords reasonable conviction, that, although an irregular practice of granting commissious of reprisal may have prevailed in the colonies. His Majesty in- tended to restrict his governors to the commissions and instructions granted in the parent kingdom. Notwithstanding such instruction, the same irregular practice may have continued in some of the colonies, but it has never established itself in this province ; and it has been the invariable practice of late, to grant letters of marque and reprisal, under a warrant issued for that purpose to the governor, from the Lords Commissioners of the Admiralty. The com- mission, therefore, under which the Liverpool Packet has made this capture, being irregular and invalid, that vessel must be considered as a non-commissioned ship, and the claim of the captors of course rejeced. Judgment — Dr. Croke. This vessel was captured upon the 17th of October, by a privateer fitted out at Liverpool in this province, 2c 385 The LiTTLK Joe. January/ 20th, 1013. !-i^ !,llil« ,1111 1 IM 386 The Little Jot. January SOfli, 1812. CASES DETERMINED IN THE called the Liverpool Packet, and commanded by John Freeman. The ship and cargo have both been condemned as American property, under the order of the 13th of October, and the Court has now to deter- mine who is entitled to the prize. Two parties appear as claimants-— the King, and the owners of the privateer ; and on behalf oFHis. Majesty, the question is reserved, whether he is in- tied to it jure coronce, or as a droit of admiralty. It is incumbent upon the owners of the privateer to prove their own title, which depends solely upon His Majesty's proclamation for the distribution of prizes They claim, under a commission which was issued by the governor of this province, upon the 20th of August 1812, by which the captain was authorized " to take, apprehend, and seize, all vessels belonging to the United States." This commission was granted by the authority of the lieutenant governor alone, without any warrant from the Lords Commissioners of the Admiralty, and indeed before the order in council for general reprisals, which was not issued till the 13th of October. In the arguments on behalf of the privateer, it has been attempted to dazzle the eyes, and to suspend the functions of the Court, by a splendid display of the dignity of the governor of the province. It has been said that he is the representative of His Majesty, and of the Lord High Admiral, and that a solemn instru- ment, granted in the most formal manner, under his signature, and under the seal of the province, ought not to be disputed, and cannot be invalidated. Little indeed would it become this Court, and far from ray own inclmation, to treat so great an office with dis- respect, but it must be recollected, that no man, m a free country like Great Britain, however high, IS above the laws, and that the acts even of His Jl COURT OF VICE-ADMIRALTY. Majesty himself are liable to be questioned, and examined in courts of justice, much more of any officer, appointed by him, however dignified his station. If (his is true as a general principle, still stronger will it hold good, where, as in the present case, those acts are brought forward by private indi- viduals, in support of claims set up in opposition to, and in derogation of His Majesty's own rights. Be- sides, the present question does not affect the general validity of the commission itsclP, as an authority to make captures, but merely whether it will entitle the privateer to the prize under the proclamation. The words of the proclamation are these : After stating as a preamble, that the Prince Regent had ordered general reprisals, " so that as well His Ma- jesty's ships, as also all other ships or vessels that shall be commissioned by letters of marque or general reprisals, or otherwise by the commissioners for executing the office of Lord High Admiral of Great Britain, shall and may lawfully seize all ships belong- ing to the United States ;" it proceeds to state that it was His Royal Highnesses intentions, that " the neat produce of all prizes taken, be given to the takers • that is to say, that all prizes taken by ships and vessels having commissions of letters of marque and reprisals may be sold and disposed of by the mer- chants, owners, fitters, and others to whom such letters of marque and reprisals are granted." The order for distribution recites and refers to the previous order for general reprisals. When it gives the right in prizes to certain commissioned vessels, it must be understood to mean only such vessels as are before described, namely, such as are commissioned by the Lords of the Admiralty. It must relate to such vessels as by the previous order 3cg 36'7 The LiTTLR JoP. January iOtU, 1813. lUi f . i 388 The Little Jei. JatwMnj 20th, 1813. CASES DETERMINED IN THE are alone authorised to make captures, that ig, to vessels so commissioned. The form of the present proclamation is the same which has been adopted in former wars, in the respective proclamation, and prize acts. The deci- sions in cases which arose upon those documents are conformable to this interpretation. In the Reiecca, Thompson,* it was held, that " all title to sea prize must be derived from commissions under the Admi- ralty, which is the great fountain of maritime au- thority." In the El Conde de Galbez, Ariaza, of which I have a manuscript note, the lords declared, that " under the prize acts, no other vessels are entitled to share but those which are authorized under the Lord High Admiral" I am therefore of opinion that the Liverpool Packet not being commissioned by the authority of the Lords of the Admiralty against the United States of America, is not comprehended within the proclamation by which His Majesty's bounty has been extended to captors, and I therefore reject the allegation given on behalf of the master and owners of the privateer, and condemn this ship and cargo to His Majestj, reserving the question^ in what capacity. • Rob. 1. 235. COURT OF VICE-ADMIRALTY. 389 ■ I; f ;ii The Brig Georob^ Robertson, Master. Jamutry 9Sd, 1813. Sentence — Dr. Croke. Hi!i rpms vessel with a cargo of brandy, wine, silks, and other goods, the produce and manufacture of France, sailed upon the 7th day of June 181^, from the port of Rochelle, on a voyage to New York. Both ship and cargo were American property, and they were seized upon the 8th day of July 1812, by His Majesty's ship of war the Guerriere, commanded by Captain Dacres, under the order in council of the 26th April 1809. It is there ordered, "that all ports and places under the government of France shall be subject to the same restrictions, in point of trade and naviga- tion, as if the same were actually blockaded by His Majesty's naval forces in the most strict and rigorous manner, and that every vessel trading from and to the said countries, together with all merchandize on . board, shall be condemned as prize to the captors." An absolute right to this prize after condemnation is hereby vested in the captors, unless the order itself was repealed, or its effects suspended at the time of capture, or at the present time, by the subsequent order of the 23d of June 1812. The clause in that order by which it was declared " that the former order be revoked from the first day of August,'* is inapplicabte to the present seizure, which was made upon the 8th of July preceding, and it can only be aflFected by the two following clauses, which relate to the intermediate time between the 20th of May and the 1st of August. It is unnnecessary to consider how far a right to The order of the 23cl of June, void hy the Americans not complying with the conditions, and the subse- quent order for general reprisals and coademna- tioo. III ,|M I! llfl 390 The I'.rig Geohoe. January Ulid, 1813. CASES DETERMINED IN THE prize, thus clearly given, could have been divested . by an order in council made subsequent to the cap- ture; jet it may be observed, that even in that case, the crown, till condemnation, might have suspended the adjudication, and might have directed the pro- perty to have been released at anytime before adjudi- cation ; His Majesty is both dominus litis and domi- nus rci litigata* Rut this order in council was issued previous to the capture, and therefore was then in full operation. This repealing and suspending order of the 23d Jtme, was not absolute, but it was conditional ; and contained in it a clause of defeazance. If the condi- tions, therefore, have not been performed, the order is void ; and, by the general rule, that if a law that repeals another is itself repealed, the first law is thereby revived, the order of the 26th Jpril is again in force, and all rights arising upon captures made under it will become valid. I shall consider first the clause of general revoca- tion, and afterwards the particular clause which .relates to the period before mentioned. It says, " whereas by certain acts of the Govern- ment of the United States, all British armed vessels are excluded from the harbours and waters of the United States, the armed vessels of Fiance being permitted to enter therein, and the commerce between Great Britain and the United States is interdicted, the commercial intercourse between France and the United States having been restored. His Royal High- ness is pleased to declare, that if the Government of the United States shall not, as soon as may be after this order shall have been duly notified by His Ma- jesty's Ministers in America to the said Government, * Elzebe, Maas. Rob. V. 173. II ?, COURT OF VICE-ADMIRALTY. revoke, or cause to be revoked, the said acts, this present order shall in that case, after due notice sig- nified by His Majesty's Ministers in America to the said Government, be thenceforth null and of no effect." The nullity of this order depends upon three things. 1st, A notification by His Majesty's minister in Ame- rica : 2nd, The non-revocation of the acts; and 3dly, Due notice.—With respect to the first. It is proved by the order for reprisals of the 13th October, which states, that such notification had been made. As to the second, the fact is notorious, that so far from having, as soon as might be, revoked the said acts, that ihey are since extended still further by the declaration of war, and that the American Government has confiiHifid, and still continues, to seize and con- demn all British vessels, not only in their own ports, but wherever they nrtay be found. And it is stated in the order for reprisals, that " they have not thought fit io recall the declaration of war, but have pro- ceeded to condemn, and persist in condemning the ships and property of His Majesty's subjects, have re- fused to ratify a suspension of arms, and have directed hostilities to be recommenced." The fact therefore of the non-revocation of the acts, within a reasonable time, is fully proved from the highest authority. It is the third requisite that due notice shall be signified by His Majesty's minister in ^»imcrt to the said Government. It is impossible that this condition should be literally complied with, because after the declaration of war. His Majesty has had no minister in America, and the impossibility arose from the act of the American Government itself. But a public notice has been given by the Prince Regent himself in a most authentic and solemn act of the state, which is at least equivalent to a notification through an am« 391 The Brig Gp.onoE. January !23il, 1813. "m 1 I '1' 'I'Si 11 1.' It Ft- ; I h The Ilrig GHonoE CASES DETERMINED IN THE January 23i|, 1813, bassador, namely, the Orders for General Reprisals, anc', for the condemnation of all American property to the captors. It is evident therefore, the British Government having performed every thing- which was required 01, Its [)art, and the American Government not having complied with the conditions of the order, that it has become thenceforth null, and of no effect, according to i,he provisions expressly contained in it. There is a particular clause in the order which relates to captures made subspqueut to the 20th of May and prior to the 1st of August. The words are, that " all American vessels and their cargoes being American property that shall have been cap- tured for a breach of the orders in council alone (that is, of the 7th of January, 1807, and the 26th of April, 1809) shall not be proceeded against to condem- nation, till further orders, hut shall, in the event of this order not becoming null and of no effect, in the case aforesaid, he forthwith liberated and restored." Here condemnation is suspended, either till further orders, or till the order of the 23d o{ June, is rcn- dered valid by the performance of the conditions. With respect to the latter direction it falls to the ground, because, as before proved, the order is null, and for another reason, that the Americans are now become enemies, and the property cannot be liberated and restored to them. The object therefore of this clause no longer exists, since the performance of it is a legal impossibility, and as the purpose for which the suspension of the adjudication was directed is thu? done away with, any farther suspension would be nugatory. It was however directed by the former part of the clause, that " such vessels should not be proceeded against till further orders." Now by the order for reprisals, and the warrant to this Court and V '\ \ COURT OF VICE ADMIRALIT. from the Lords Commissioners of the Admiralty, a general order is issued, to take cognizance of, and judicially to proceed upon all and all manner of cap- tures of all ships and goods, and to condemn all such vessels and cargoes as shall belong to the United States. This order being general must comprehend all American property whatever, except what is there expressly stated, and under whatever title, or upon whatever ground it may have been seized, and amongst the rest, all property captured under the former order in council of the 26th of April. I am of opinion therefore, that the order of the 13th of October to condemn all American property is such a furtlier order as is intended, and does authorise this Court to proceed to the condemnation of this vessel and cargo. It has however been argued on behalf of the Crown, that if this property is condemned under the order for reprisals, it is not condemned upon the order of the 26th o{ April, but, as having been taken before hosti- lities commenced, would belong to the Crown, not to the captors. 1 cannot accede to that representation. The order for reprisals does indeed authorise the Court to proceed to condemnation, but it does not destroy all distinction between captures as to the grounds upon which they were made. If the captors have acquired a right to the prize from other quar- ters, it cannot be affected by a general order to con- demn American property. By the order of the 26th of April, the captors ac- quired a right subject only to a sentence of condem- nation. The effect of that order was suspended by the order of the 23d of June. The order of the 23d of June has become null and void, both by the gene- ral clause of defeasance, and in the particular direc- tions relating to such captures. The suspending order becoming void, the original order of the 26th 393 The Brig Ueoroi. January iSd, 1813. t!^ ''' ill Mr {pi! n I III' ''lil Mi 'i r n III ' i-: V I 1 394 The Brig GcoRoic. CASES DETERMINED IN THE or April revives again in full force, and all caphires comprehended under it, are to be condenmedas prize J««u.rv s3d. to the captors I condemn this vessel and cargo to the Gucrriere See Appendix, A. B. and F. Februiinj ,iili, 1813. The Little Joe, Fairweather, Master. (Second Case.) T^HE claim of the capturing privateer having been rejected in the former case of this vpssel, several questions arose in the case of the same ship, the na- ture and grounds of which are so fully considered in the able judgment which follows, that an>^ elaborate detail of the arguments would be unnecessary. Upon the points reserved, whether the prize should be con- demned to the King jMre corona, or as a droit of ad- miralty, and who were the proper receivers. For the Crown, the King's Advocate contended; that although the commission could not be effectual as a regular letter of marque entitling the captor to the prize, it was an instrument of high authority, under which the privateer had been acting, not altogether as a lawless captor, but as a vessel commissioned by the representative of His Majesty for the good of the state. Whatever she captured in this capacity should therefore be adjudged a droit of the Crown and not of the Admiralty, as a prize taken not without autho- rity, but with the permission and on behalf of His Majesty under a commission, that may be said to have issued in furtherance of the Prince Regent's order of detention. For the Admiralty, the Solicitor general, contended. iifi " ( COURT OF VICE-ADMIRALTY. that the claim of the Liverpool Packet having been rejected upon the ground of the commission, under which she acted, being illegal, it cannot be seriously argued that the same commission is valid for any other purpose. The capturing ship being a non-com- missioned vessel, the prize therefore becomes a droit of admiralty to be delivered to the agents of the re- ceiver-peneral of droits in virtue of the power lately transmitted to them. For his Excellenci/ the Lieutenant- governor- Uniacke contended, that if the property in question be con- demned as a droit of admiralty, the lieutenant-gover- nor, virtute offccii, under the several conunissions of governor and vice-admiral was entitled to receive it, on behalf of His Majesty. Sentence — Dr. Crokc, — This vessel and cargo have been condemned as American property, and the claim of the master and the owners of the Liverpool Packet has been rejected. It now remains for the Court to decide to whom they of right belong. Three allegations have been given in, one on the behalf of His Majesty, another for Sir John Coape Sherbrooke, lieutenant-governor of this province, and a third by the agents to the receiver-general of droits. Upon these allegations two distinct questions arise. The first is, whether His Majesty is entitled to this prize in right of his Crown and royal prerogative, or as a droit and perquisite of admiralty. If this prize should be decreed to be a droit of ad- miralty, then arises the other question, who is entitled to receive and to have the custody of it, on behalf of His Majesty. In both cases the property would ultimately centre in the King, but it is important to determine in which 395 The LlTTl.l Jot, Ftbruntiiiih, 'A' I ! ' 'I 3gS CASES DETKRMINKD IN TIIK m¥' 'iMh' Th« LiTTLC Jo». Ftbruary alli. capacity: because hia rights jure corona: and (he droits of admiralty arc perfectly' distiiicl, thc_y rest upoadiOcrent foundations, and travel through diH'er- ent roads. The King, who is originally the owner of all property taken in war, has granted certain portions of it to the lord high admiral, and which he now re- serves again to himself upon appointing commissioners to execute the oflice. With respect to those perqui- sites. His Majesty now stands precisely in the pluce to the Lord f ligh Admiral. The King's title upon these different grounds is kept as separate as if the rights were vested in different persons. In the High Court of Admiralty, and in the courts of appeal, upon every occasion where they appear, they are set up in opposition to each other, and are contended for by the respective officers of the Crown ; and they arc always most attentively discriminated in the decisions of those tribunals. Whatever therefore may acci- dentally be the consequence to other parties, it is in- cunabcnt upon this Court to decide the question, ac- cording to law. To do otherwise would be a breach of its duty, and the violation of a solemn oath ; and an error, in this respect, would be as much an object of appeal as any other grievance. The droits or rights of the Lord High Admiral were granted by his patent, and established by pre- scription, but they were accurately defined by the orders in council in the year 1666. The present ship and cargo are claimed under the second article of those orders ; - That all enemies' ships and goods casually met at sea, and seized by any vessel not com- missionated, do belong to the Lord High Admiral." Three things are here required, that the ship and goods shall belong to the enemy, that they shall be casuallj met at sea, and they shall be seized by a vesBcl not commissionated. If these three facts are COURT OF VrCK-ADMIKALTY. proved by evidence, this nhip and cargo must bo con- demned to IliH Majesty as droitH of admiralty. War was declared upon the 13th of October, and this capture was made upon the t7th of that month. Under whatever title therefore this seizure was made, the ship and cargo were at the time of seizure ene- my's property. It was taken not in port but upon the high seas. The two first requisites are therefore clearly proved, ind the only question which can be raised respecti the other part of the article, that the seizure must be made by a non-commissioned vessel. This case, in another point of view, has already undergone an examination, and has been decided upon by the Court, so far as respects the title of the captor to the prize. But that decision rested upon different grounds and by no means precludes the present ques- tion. The subject of enquiry there was, whether this was such a vessel as is included within the words of His Majesty's proclamation for distribution ; the present question is, whether it is so commissiooed as to oust the Lord High Admiral of his droits. If this vessel was entirely without a commission, if she had no commission against the United States, or her commission was not granted by a competent autho- rity, she is equally a non-commissioned vessel. This vessel had a letter of marque against France, but it is a decided point, that notwithstanding such commission, without a letter of marque against the United States, she was^ as to American captures^ a nou" commissioned vessel. It is admitted that no warrant had been transmitted from the Lords of the Admiralty,*; by the authority of His Majesty's commission under the great seal, to issue letters of marque agaiusL the United States; though such warrant has since been sent. ^Sft LtTTLt JOI, Ftbrtiary 9th, 1813. :iiii i'i "Vw v,> Li M I'i 39« €ASES DETERMINED IN THE The LirTLK Joe February Ath, But It has been alledged on behalf of His Majesty that this vessel was commissioned by the Prince Re' gent's order in council of the 81st Juhj, 181'^, or by an instrument under the seal of this province, which has been produced, and bears date the 20th yiugust 1812, either under the authority of the Prince Re' genfa order before mentioned, or of the general powers vested in the lieutenant governor of the pro- vince by his commission as lieutenant governor, and commander in chief, and vice-admiral, and His Ma- jesty's instructions which accompany them. The question therefore resolves itself into four points. 1st. Whether the vessel became a commissioned ship by the order in council alone. 2iid. Whether she was commissioned by the instru- ment granted, upon the supposition that it was autho- risedhy the order in council. 3rd. Whether by that instrument itself, indepen- dent of the order in council, as a mere embargo au- thority. ® 4th. As a letter of marque and reprisals. I. Jn the first point of view. What is a commis- sioned ship ? It is a vessel authorised by an express commission emanating from a competent authority directed to its commander to exercise hostilities against a particular country, or confining it to private ships, as It 18 described in the Prince Regent's order for .distribution ; such a vessel as has a commission of let- ters of marque and reprisal. But the order is not designed for the exercise of hostilities, it is only to detain and bring into port. It is of the nature of a provisional embargo, and was so considered by the Frince, in the subsequent order of the l3th October. An authority for any other purpose than to take as prize, IS foreign to the question, it must be a commis- COUIIT OF VICE-ADMIRALTY. Mon (o inkcjure belli. Neither could a vessel be said hy tins order to be commissioned. It was a general order, and no particular commission was in fact issued under it, or directed to be issued. 2. If the commission from the governor was founded merely upon this order, it could have no further au- autboritj, and could be subject to no other construc- tion than the order itself, and therefore could have no further effect in commissioning the vessel. 3. It was argued that this instrument was not a letter of marque, or warlike commission, but a mere authoritit}^ to make a peaceable seizure, something in the nature of an embargo, and which was a measure which cverj governor of a province, as of common right, had full power to have recourse to whenever occasion required. But an embargo is of a very dif- ferent nature. It is a temporary detention of vessels within the ports of a country, and consequently within the operation of the municipal laws and power of the country. To seize the vessel and goods of the subjects of another country, upon the high seas, what- ever may be the ultimate object of it, is prima facie an hostile act, and' though merely provisional, can flow only from the same powers which can declare war, and order general reprisals. 4 This instrument in its form is a letter of marque and reprisal. The operative part of it is couched in the same words. " I do hereby authorise and direct you John Freeman, master of the ship called the Liverpool Packet, to apprehend, seize, and take, any ship, vessel or goods belonging to the United States, or the subjects thereof, or inhabiting within the ter- ritories thereof." No distinction can be made be- tween this instrument and a letter of marque as to its powers and the authority necessary to issue it. A commission to apprehend, seize and take, is an autho- 399 ! : ( Tlio L1T11.K Jog. Februart/ M\, 3«1J. iHiiiii! illiil ||«ll!ll f ! M ''■i! 1 ii rill If" lil'l !i i f - M I 1 M 1 till !il' Ifi 400 The liirrtE Joi. Febriiart/ 5th, CASES DETERMIiXED IN THE rity to commit reprisals, although the ultimate dispo- sition of the property may depend upon future con- tingencies. The question then becomes reduced to this, that the only ground upon which this can be maintained to be a commissioned vessel, must be founded upon the powers granted by His Majesty to the governor of this province, to issue letters of marque and reprisals by the commissions, and instructions set forth in th« allegation. I should be extremely unwilling to enter into any discussion respecting the powers and authorities of his excellency the Lieutenant-Governor ; but they have been brought into question by the parties and their counsel, who may be considered, in some mea- sure, as at issue upon them ; and their examination is necessary to the decision of the present case. With tiie greatest reverence therefore for the high station Itself, and the sincercst pcrsojial respect for the wot- thy and eminent person who occupies it, I must follow where my duty leads; with firm but cautious steps; with the reserve and decorum which becomes such subjects, but with the freedom of truth, the strictest adherense to sound legal principles, and the accuracy required in a judicial enquiry. To consider the general nature of these commis- sioDs :— It ii the prerogative of the Sovereign only to dc termine what part of the public or private force of the state shall be employed in the operations of war. No subject can undertake any offensive expedition against the en-^my, either by land or sea, without a particular commission, measures of self-defence not being comprehended under that description. Sea commissions are of two kinds, those which are giv^n to vessels which are the property of the Sovereign, COURT OF VrCE-ADMrRALTY. and therefore are called Kiiig'^ ships, and those which are granted to persons who equip vessels attheir own oxponse, and are reimbursed by a share, or the whoh» of their plunder, as may be conceded to them by his His Majesty, from whose free grant alone they can be entitled to it. The latter, as to their constitution, are as much public vessels as the former, and their commissions can be derived only directly or indirectly from His Majesty. The royal prerogative is usually exercised not pro- miscuously through the medium of any of Ilis Ma- jesty's ministers or officers, but through the known, established, and appointed channels. Naval military commissions, whether to King's ships, or private ves- sels, are issued through those officers, to whom it seems properly to appertain, that is, the Lord High Admiral, or the Lords Commissioners, who arc in- vested with his authority. That such was the exclu- sive practice from the earliest times might he proved by a reference to many ancient documents upon record. This branch of the royal prerogative, of commis- sioning private vessels, or as it is more usually called, of issuing letters of marque and reprisals, is carried into effect in the most solemn manner. Upon an order made in council by the Sovereign in person, a com- mission passes under the great seal, to the Commis- sioners of the Admiralty, authorising them, or any person by them appointed to issue letters of marque. In consequence they grant, in England, a special warrant for each applicant to the Judge of the High Court of Admiralty to issue the letter of marque, and, m the colonics, they transmit a general warrant to the governor, to authorise the Judge of the Court of Vice-Admiralty to issue these instruments, in the &ime 2d 401 Tlie Little Joe. Fehrunry 5l|i, ll 402 Tip I.JTll E JOP. Fibninni 5',h, 1B13. I ■I ii, |r CASES DETERMINED IN THE manner as in England, and nnder the securities, and with the regulations prescribed. The reason why so many formalities and precau- tions should beohserved is obvious. There is no mode of warfare more liable to abuse, and to degenerate into a species of piracy, none which has given more occasion of complaint to neutral nations than the em- ployment of privateers. It has therefore become a part of the law of nations, and has often been intro- duced as an article of convention between many states, particularly in several treaties to which Gnat Britain is a party, that adequate securities should be given, and every precaution adoped to prevent a misappli- cation of the privilege* As this was the ancient, so it continues to be the modern practice, and at the commencement of a new war, warrants are sent from the Admiralty board to the governors of provinces ; as has been done since the breaking out of the present hostilities. The regular transmission of this authority, though not amounting to a dii'ect proof, because there is a possibility of a concurrent authority elsewhere, yet certainly carries with it a strong presumption, that without such war- rant the governor was not possessed of such authority. Because, upon the contrary supposition, the warrant would be useless and nugatory, and it is not to be sup- posed that His Majesty's government would exert it- self in acts of supererogation. This presumption is further strengthened by the order of the thirteenth of October. The words of this order as to the hostilities to be exercised against the United States are as extensive as possible, for general reprisals are granted against them ; yet when it proceeds to designate by what vessel these general hostilities are to be effected, it specifies only His iMajesty's ships, and such as shall be commissioned by COURT OF VICE-ADMIRALTY. letters of marque, or otherwise, by His Majesty's com- missioners for executing tlie office of Lord High Ad- miral. No other vessels, however commissioned, are authorised to commit hostilities upon the enemy. And these words are used, not as seeming to introduce any new limitation, but rather to refer to a known and usual limitation of the rip;ht of making captures in war, to a supposed established principle, that it was necessarily confined to those two species of vessels only. If this was considered as a previously existing limitation it would be conclusive, that no authority to commission vessels subsisted any where but in the Ad- miralty. If it was introduced as a new restriction, it may, I think, reasonably be doubted, whether it would not annul any power of that kind which had been previously granted ; for by this order the Prince Re- gent not only makes the declaration of war, but he specifies the only vessels by which it shall be carried on. It is from this order alone that both are deduced; without this order, no vessel could exercise hostilities, with the order, none can exercise them but those two kinds of vessels. Independent of the order no vessels have authority ; by virtue of the order, only those two classes of vessels are authorised. But an examination of the governor's commissions themselves, will, 1 think, reduce these presumptions to a certainty, and shew clearly that no such power is vested.* No doubt can be entertained but that His Majesty may, by commission under seal, depute to any of his subjects the rights and the exercise of almost any branch of his royal prerogative. But questions may arise upon any of His Majesty's commissions, as to what power he has granted. And there is one esta- blished rule of law to direct the enquiry, that no part * See Note I. p* 422—424 iiifra. 2 D '^ 403 The LirTLK Joe, February 5th, 1813. i \\\ m •i < I ' i I t * ^1 I' I < ' > r\ I yP ' ^11 ii n mm i:k Ii 404 The Little Joe. /( bruury ftlli, CASKS DETERMINED IN THE of tlic rojal prerogative, especially of the higlier branches of it, can be transferred without the most express words to that effect. The first commission which 1 shall examine is that of the Vice-Admiral as apparently most connected with the case, and it may be necessary, for illustrating the subject, to enquire a little into the nature and history of the oflicc itself, as derived from that of the Lord High Admiral ; since it appears not to have been well understood. It is clear from those learned antiquarians who have extended their researches into the usages and laws of former times, and particularly Mr. Seldcu^, that the office of lord high admiral originally com- prised civil rather than militarij duties, and that the peculiar object of it was not so much the command over the fleet, qua hostibns per marc resistctcr, but for guarding the sea, against pirates and other lawless persons, and the protection of commerce, dc ipso mari tuendo, having the same power at sea as other magis- trates had upon land. Their usual style was that of cmtodes maris, and thcvwere said in the old lanjruaffc of parliament to be appointed " for the keeping and sure defending of the seas against all persons, for the entercourse of merchandize safely to come and pass out of the same." They were intrusted with lagnrd dc la pees de la meer, ou la saufgard dc la mere. For this purpose they had a general jurisdiction in all af- fairs, civil and criminal, upon the seas, and as incident to jurisdiction, they were intitled to various droits, rights and perquisites. This was the ordinary power of the high admiral ; the military power, to carry on warfare at sea, was an extraordinary power, given to him occasionally by special commission, or other tem- porary authority. It is not surprising therefore that * Selden, Mare Clausum, Sfc. i s COURT OF VICE-ADMIRALTY. the commission of this high olTiccr, which has hcen continued in the sanie form for many centuries, should specify and relate to those duties and rights, which are derived from his Original authority, and are of a civil nature, and so little as to their military or ac- cessary duties; and that the ancient law hooks should be so full as to the one kind, so deficient and barren as to the other. For the better performance of these civil and ma- ritime duties, the High \diiur;il was authorised by his patent, as the Lords Commissioners are at present, to constitute vice-admirals under him. It was the usual practice formerly to appoint many of these offi- cers in England, with jur/isdiction over particular districts. I apprehend that there was a vice-admiral for each of the maritime counties, who exercised much of the same judicial powers sts are now de- legated to the Courts of Vice- Admiralty in in- stance causes, either by himself or his deputy. They were besides the collectors of the droits and perqui- sites of the admiral, and his ministeral officers for the seizure of prizes, and other disputed property, which came within his jurisdiction. This office in legard to maritime affairs seems to have resembled that of a sheriff or a justice of peace. There is a letter extant from a very eminent person. Sir Leoline Jenkins, who was judge of the admiralty, secretary of state, and ambassador at the treaties of Nimeguen and Cologne in the reign of Charles the Second, which shews pretty nuch the nature of this office, when it was in viridi ohservantia. It is addressed to the honourable Mr. B. a vice- admiral. It seems that a salvage case of a vessel which had met with some casualty near the coast, had been brought before him. His deputy had de- creed very unreasonable salvage, and had directed 405 The Little Joe. Felininry 5th» m mm m 'lift I III! liii'i i]il Hf" !. i.J 1 u I, ' 1 i 'lod Thp LtTTt« Joe. ■ ■ I Fthrnnry AlIi, CASES DETERMINl^D IX THE the vessel to bo sold for the payment of it— the opinion of Sir Lcolhic was taken, and he dvith those at land ; that is, represents the King's part in preserving his subjects and allies from violences, most especially in their distresses. Yet in some tilings every vice-admiral will confess; that lie hath a better prospect to a lucky hit, than a justice of peace at land hath; besides, vice-admirals in Eng- land in ancient times being persons of great figure in their country, used to lay out themselves and their pains, for saving the King's subjects, their allies, and their goods respectively, as men who were appointed to relieve the miseries of strangers, and that regarded the peace, the honour, and the justice of the nation*." Upon the establishment of colonial governments it was thought proper to invest the governors with the same civil and maritime powers, and therefore it became usual for the Lord High Admiral, or the Jenkins, Vol. 11. j). 718. COUllT OF VICE-ADMUIALTY. Lords CumniisBiotiers, to grant a commission of vice- admiral to them. The office thus conferred upon the governor was precisely thie same with that of .the vice- admirals ill En^lnnd, smd was coDfined to the civil and maritime jurisdiction^ which was t])c orig;inal branch of the admiral's authority. This is evident from the commission now produced. It gives the vice-admiral cognizance in all civil and maritime causes^ ofFenceSj and crimes ; to enquire into the usages of the sea, wreck, and other forfeitures, goods waved, flotson, jetson, lagon, and other casualties and perquisites ; to take recognizances, to fine and punish offenders, to preserve the public sti ms and waters ; to reform nets, and unlawful enginio, with other si- milar duties, but not a single clause which confers any military naval power whatever. In England the office has fallen into disuse, no vice-admirals have been for many years generally ap- pointed, and their functions have been performed by the High Court of Admiralty and its officers. In the colonies, patents of vice-admiral are continued to be granted to the governors : but most of their duties are in practice superseded by the general establishment of Courts of Vice-Admiralty ; many of the rights to which they relate have become obsolete, or have been abolished, and other modes, more convenient for use, and better adapted to the modern state of the world, have been adopted for the enforcement of a maritime police. So much for the nature of the office in general. With respect to the power of commissioning ships, and issuing letters of marque, it must be either inhe- rent in the office itself, or conveyed to it by the express words of the patent. But the Lord High Admiral, or at least the Lords Commissioners, have no inherent power of this nature. By their patent they arc only 4o; The Liri LK Jrir. I'lhninrn .itii, ' ' I ' Ml ii! till ii li'i I 111 ! .! r I I! 'iM fl 1 ! .MHKM ■ U$ 408 The LiTfiB Joe. Ftbriiari/ b\li, 1813. CASKS DETEUMINl'D IN THE audiorisod lo build, repair, fit. furnish, aini, victual, and set forth, {by which I understand to cou)mis.sion) such ships and fleets as they shall receive direclions for, cither from His M({jeslij or his privij council. and with respect to privateers in particular, not to mention the usage that no commissions or letters of marque arc ever in fact granted, till the Lords are authorised by a commission under the great seal ; it is expressly laid down by the high authority lately quoted. Sir Lcoline Jcnidns*, That the Lord Ad- miral gives this poxver to private men of war, not virtute officii, hut hij a special com?ni.ssi()n. Since the Lord High Admiral himself has no power virtute oficii to commission ships, neither can the Vice- Admiral, who derives his authority from him. No such power has been given him by special commission from His Majesty, since it is not contained in his patent, or other instruments. I shall proceed now to consider whether this is a commissioned vessel under his Excellency's commis- sion as lieutenant-governor, and His Majesty's in- structions which accompany them. It may, I think, previously be observed, that a letter of marque being an authority which extends to the whole ocean, and enables the vessel to make cap- tures all over the world, does not seem very naturally io be comprehended in th- powers of a governor whose commission is expressly confined to a particular province, and the maritime parts thereof. Next, that a letter of marque \^^ naval commission and constitutes the vessel to which it is granted a ship of war. It seems improbable therefore that no such power should be given in the naval commission of vice-admiral, and yet should be contained in the civil and military commission. * Jenkins, Vol, II. p. jSS. COURT OF VICI'-ADMIRALTY. That no such stand inp^ powers exist in any subject [aUrcat Britnin, not even in the Lord High Admiral with whose office it is most connected, without a ispecial, occasional and temporary commission under the great seal, and this being a power not necessary for the defence of a province, it is not probable that so high a power should be permanently and perpetu- ally conferred. In examining the instruments themselves it must be remembered that in law all commissions are stricti juris, and cannot be extended beyond their plain and express words*. The first clause relied upon, gives a power of arming and employing all persons, to march or to embark them, for the resisting and withstanding of all enemies, pirates, and rebels, both at sea and land, and such enemies, pirates, rebels, if there shall be occasion, to pursue and prosecute in or out of the limits of the province. This is evidently the power of raising and employing the militia for the defence of the province, either upon the land or the sea. The next clause refers evidently to the former, which having authorized the execution of martial law on land, this proceeds to give the same power at seUy in case of any embarkation under the former clause. The preamble states " that forasmuch as divers mu- tinies and disorders may happen by persons shipped and employed at sea, evidently referring to the for- mer clause, to the end that they may be better governed and ordered. His Majesty grants the power to constitute and appoint captains and other officers, and to grant to such captains commissions to execute the law martial. No doubt under this commission vessels may be * See Note I, p. 422—424. infra. 409 The LiTTi,r, Joi. Februani Alh, 1813. Ji 1 1 I \ f [1 I 1 1 1 ll 1 1 '' Mill. iii'M iii 't I " ' I MK 410 The LlTTM Joe. I'tbTMarv 4tli, lUXJ. CASES DLTEUMLNED ]N THE fitlrd out" /or the defence of the province, and cap- tains and other officers commissioned to conunaud them. It has been so done nhenever the state of affairs required it. There are manjr commissions ol" this nature remaining in the secretary's office. But a commission to vessels in the service of government to resist and withstand enemies, pirates, and rebels, is very different from a commission to private ships to apprehend, seize, and take generally, any ships and goods belonging to the enemy, or in other words, to issue letters of marque and reprisals. The powers specified are for defence against attacks by arms, to resist and pursue hostile forces ; letters of marque are for offensive hostilities to seek out all over the world, and to take peaceable property, to plunder the ships and goods of merchants and other persons not in arms, or engaged in hostilities against the country, a mode of warfare, the very legality of which has been denied by many modern writers, and which, to say the best of it, is too often exercised in an unjus- tifiable manner. Amongst the extensive military powers given for the defence of the province, , the issuing of let- ters of marque is not to be found, either expressly by name or by words of the same meaning. Letters of marque and reprisal are well known in the laws of Great Britain. Unless therefore they are mentioned by their legal appellation or clearly described by ex- pressions tantamount, the commission cannot extend to them. And since they extend iar beyond every measure of defence, they seem as little to be compre- hended under their spirit and intention, as under their express definition. His Majesty's instructions to the governor refer to tlie commission and create no new powers. The clauses relating to this subject are evidently not to 411 ihe LiTTLs Jnr. COURT OF VICI'-ADMIIIALTY. enliirs;e, but to restrict those powers, and the pream- ble states, that great irregularities had prevailed in the manner of granting commissions in the planta- F*i>ru«ri/ sth, tions." The governor therefore is directed "to govern himself whenever there shall be occasion," that is, when it shall be necessary to exercise the powers vested in him, of commissioning vess for the defence ofthe province as authorised by the commission ; or to issue letters of marque, when so authorised, in the usual mode, then to " govern himself according to the commissions and instructions granted in Great Bri' inin." But though self-defence might authorize defensive measures against princes or states in amity with His Majesty in case they attacked the province, so that it should be expedient to commission vessels for that purpose, yet he was " not to grant commiS' sions of marque and reprisal, against such princes or states in amity with His Majesty, without his special command," evidently making a distinction between commissions to private ships generally, and commis- sions of marque and reprisal. Taking the commissions and instructions therefore together, the meaning is obvious and plain, and there is evidently no power given in them to issue letters of marque and reprisals without a special authority. If any doubts arise upon patents of this nature, the intention is best explained by the practice and usage. Diligent searches have been made, both in the office of the Registrar of the Court of Vice-Admiralty, and of the province, as to what letters of marque have been granted from the commencement of the province to the present time, and the mode of issuing them. It was very possible that many irregularities might have occasionally taken place, in a series of years, under a great variety of governors and officers^ as is stated in His Majesty's instructions to have for- m l.. II 416 The Ltttlb Jok. Februani /ith, 1813. CASES DETERMINED IN THE protection anJ benefit of those whom they are an- pointed io govern. But though it may be difficult, in particular cases, to draw the fine line bj which this power is defined, some limits must exist. In ex- treme cases they would be evident, and it would seem that to authorize private subjects to commi*. reprisals upon the unarrred inhabitants of a country in amity with Great Britain, not being in a measure of de- fence, may fairly be ranked amongst them. It is true likewise that in urgent necessities, or for some great and decided advantage to the country, acts are not unfrequently done which arc not sanc- tioned by law, and which are not only justifiable in policy, but may meet the approbation of the Sove- reign. But the law notwithstanding remains ua- altered, and in full force. Acts of Parliament fre- quently became necessary in such cases to shield individuals from the penalties incurred, and no such acts can be so far valid as to affect the rights of third parties, which is the only point of view in which these powers becomes the subject of discussion in the present case. After the extensive view which I have thought it my duty to take of this question, in all its bearings, after the most diligent researches, and the most ma- ture deliberation, according to the best of my im- perfect judgment, I am of opinion that this instru- ment, purporting to be a letter of marque, and having issued before the order for general reprisals, is not so far authorised by any commissions, or in- structions, directed by his Majesty to the Lieutenant Governor of this province, which have been produced in evidence, as would constitute the Liverpool Packet such a commissioned vessel as to deprive the Lord High Admiral of his droits. And I therefore con- COURT OF VICE-ADMIRALTY. deron llie vessel called the Little Joe, and her cargo, as droits and perquisites of His Majesty in his office of Admiralty. This question being decided, another arises upon it. There are two parties before the Court, who each of them claim a right to have this property delivered to them as receivers on the part of His Majesty. The Lieut. Governor, Sir JoTm Coape Sherbrooke, and the other parties are jointly Samuel Hood George^ Edward Brabazen Brenton, and Brenton Halliburton, Esquires, The former in pursuance of the provisions contained in the several commissions of Captain General, Governor in Chief, and Vice Admiral, as set forth in the allegation. The latter, as officers and agents duly authorised to recover, seize, collect, and take, the rights and perquisites of Admiralty, by the Receiver General of Droits.* With respect to the Lieutenant Governor, his claim rests entirely up the commission of Vice Ad- miral, which is granted, by an express power in their patent, from the Lords Commissioners of the Admi- ralty. The Receiver General of Droits is likewise appointed by the Commissioners of the Admiralty, according to the power granted to them, and he is directed to appoint agents at all such ports and places as he shall find necessary. The power and authority therefore of the governor and of the re- ceiver, or their agents, is derived from the same source. 1 think upon the most diligent perusal of the com- mission of vice-admiral, that it is far from being clear that the power of receiving droits of admiralty is there given. The word " droits," or rights, * Su Notp II. p. 424—426, infra. 417 Tha Little Joe. February 5th, 1813. I ■ ' i.ii i.ii Ki \n\ n M i' i m ' iC 1 'I ■ i 418 CASES DETERMINED IN THE The Little Job, Fehriiary 5tli, l;- 1 Uiough well known in the laws and proceedings of the Admiralty, does not there occur, or any general words which might comprehend them. The only part which seems applicable, is where " perquisites" are mentioned. But this term being classed in the same clause of enumeration with amerciaments, issues, fines, mulcts and pecuniary punishments alone, which are all profits of a judicial nature, and seemingly limited to such as happen, or are imposed, assessed, presented, forfeited or adjudged, before the vice ad- miral, or his lieutenant or deputy ; it may be doubted ■whether such droits, as the goods of enemies are there intended, or any other than perquisites of judi- cial proceedings in the vice admirars own limits. Yet the power of collecting these droits seems so perfectly conformable to the general nature of the office itself, and it is so expressly mentioned in the patent of the Lords Commissioners, that " al' droits be taken, collected, and received by the vice ad- miral ;" and again, in the instructions to the Re- ceiver General, that the right cannot be doubted, and that by lisage at least, it property belongs to them, I meaHj general usage, for there is no instance of the vice-admiral's having received the droits in this province. On the other hand, the right of the receiver and his agents is equally clear. The patent to the com- missioners directs that the droits shall be received by the vfce admiral, and " other officers of or belong- ing to the Admiralty," and every of them respectively. It speaks afterwards of vice-admirals, " or other col- lectors, receivers, oi any commissioners authorised by the Court of Admiralty, as you the said commis- sioners or any three or more of you shall approve of," and it gives them the power of nominating to all offices and places. It has been the immemorial prac- ' Mi 449 The LiTTLR Jol. COURT OF VICE-ADMIRALTY. tice to 'appoint receivers, and in his commission the receiver is constitnted and appointed " to he the re- ceiver general of the revenue to arise by alt or any of February sth, the rit-!(ts and perquisites of Admiralty, and to ask, demand, recover mid receive all and all manner of rii;hfs, seized and taken iu war." In the instructions, enemies ships casually met at sea by non commis- sioned vessels arc particularly specified. The vice admirals are made accountable to the receiver. In the patent of the Lords Commissioners it is directed that "the vice admirals and others shall account for the same droits unto or before the commissioners, or such persons as any three or more of them shall appoidt." In the 9th article of the instructions to the receiver, it is thus contained, " You are from time to time to require all our vice admirals to give up their accounts of all such droits, duties and perquisites as they have received, and to acquaint us with any abuses, neglects, corrup- tions, or encroachments whatever, which you shall find or understand to be committed by any vice admiral. It is clear then, that both vice admirals, and the receiver general, have each an original and imme- diate power and authority to demand and receive droits, from all persons whatever, and that there U no reservation of the rights of the vice admiral iu exclusion of that of the receiver, but that the vice admirals arc accountable to the receiver. Both then being invested with the same power, and by th^ same authority, how is the Court to proceed upon those hostile, and unreconcileable ap- plications ? I shall first proceed upon the supposition that both parties are invested with the full powers, the ooe 3e2 ( . ■i \ [ I^^^^H : 1 H i ^^^H ^^^^1 ■ !' ' n ' 'h' l;i iH 1 M li ' t ft ^^H 'iS^^^K : "m •■ -M : ' 1 t 1 j' 1' 1 m ', « IH VI J m ' '^S 1 i' ' 1 ^.M . M 1 1 Ill 420 The LlT'lI.E Joe. February o\b. l-l; M !l: ■IL IW' 1 1 a* CASES DETERMINED IN THE of a vice admiral, and the other of the receiver • general. Since then both these commissions issue from the same authority, and both on the same terms, namely, during pleasure, the powers given in either com- mission may undoubtedly be revoked by express words, by the same authori our said lligh-Adniiral, and to former admirals, for their own benefit as duties appertaining to the oflice or place of our lligh-Aduiiral aforesaid ; now our further will and pleasure is, and we do hereby charge and command, that all casual duties, droits and profits be taken, collected and received in all places where they shall happen, by tho Vice-Admirals and other officers of or belonging to the Admiralty, in such sort as they formerly were or ought to have been taken, collected and received by them, ami every of them respectively when there was an High-Admiral o( Great Britain; and the said vice-admirals and others so taking, collecting or re . ceiving the same, shall account for the same, and every part thereof, unto or before you our said Commissioners, or any three or more of you, or unto such other person or persons in such manner and form as you, or any three or more of you, shall to that purpose appoint, but to our only use and behoof, and not otherwise. And whereas we conceive it just and reasonable that those who have or shall truly and faithfully account for what they receive, should have sufficient discharges for the same, our will and pleasure is, and we do therefore by these presents give and grant to you our said Commissioners, or any three or more of you, full power and authority to issue forth discharges, releases, and quietus ests, upon such accounts, for all duties, droits and profits whatsosver received, or to be received, by the aforesaid vice-admirals or other collectors, receivers, or any commissioners authorised by the Court of Admiralty." Extract from the Commission to the Receiver-General of Droits. " Whereas all wrecks of thp sea, goods and ships taken from pirates and enemies, and divers tenths and other droits, rights, duties and privileges, which have been heretofore granted to for- mer Lord High-Admiials for their own use and benefit, as duties appertaining to the office or place of Lord High-Admiral, are by His Majssty's commission to us, appointed to be taken, collected »nd received, iu all places where they shall happen, in such sort Th« LiTTLK Joi. Btbruary A|h, \ I81S. ¥ Wii I 1 1 t 1 1 I'll 1: 1 m 1 fm ■: 'M ,i M fl m A^^ CASES DETERMINED IN THE I', ' 1 The LiTTtk Joe. February 5th, as they formerly were or ought to have been taken, collected and received, when there was a Lord High-Admiral of England, but for His Majesty's only use and behalf; and we have a good ac- count of your experience and integrity, in which we very much confide, we do according to the power granted unto us, constitute and appoint you the said to be our Receiver-General of the revenues arisen or to arise, by all or any of the rights and perquisites of Admiralty, under what denomination soever the same have arisen, or shall or may arise, in the roonuof — — — — , deceased ; and we do hereby nominate and constitute you to be our Commissioner to ask, demand, recover and receive, to and for His Majesty's use, all and all manner of rights and perquisites that have been or shall be seized and in time of war or otherwise." Instructions to the Receiver-General of Droits, 1st. Directions how to appoint agent?. 2d. Inter alia, to inform himself of and demand all enemies' ships and goods casually met at sea, and seized by any vessel not .comniissionated. 9th. You are from time to time, ss there shall be occasion, to require all our vice-admirals to give up their accounts of all such droits, duties, and perquisites as they have received, and to ac- quaint us with any abuses, neglects, corruptions or encroachments whatever, that yoii shall find or understand to be committed by any vice-admirals or their officers, in the taking, collecting, seiz- ing or embezzling, disposing or meddling with any ships, vessels, goods, merchandize, or any Admiralty droits, and to take such course for the reformation thereof as may best conduce to the bettering and advancing the due rights and benefits of the Lord High-Admiral ; and yon are to acquaint us with any neglects, abuses, corruptions and encroachments that either have, or that you shall find may be committed by any person whatever, to the prejudice of the office and perquisites of the Lord High-Admiral. COURT OF VICE^DMIRALTY. s^27 In the Business of Mr. Snook's Petitions. ,F(bruary i7th, 1813. rpHE Lords of the Treasury appointed certain ^inH'by the -*- commissioners to take charge of American pro- ^"Sers T" perty. By an instrument bearing date upon the 3d [''^/i",^^"" ""* of November 1812, and signed S. B. Burnahy, Bees- ton Long, and Samuel Hancock, in /virtue of the powers vested in them, the commissioners appointed John Dougan, Esq. "to take charge of all American ships and property that may be already detained, or that may hereafter be brought into the ports and places named in the margin, (viz. Halifax, Bermuda, Bahamas, Newfoundland, and all ports and places on the coast of British North America,) under the orders in council of the 23d of June last." And it proceeded to direct — " And upon receiving this our appointment, you will immediately present the same before the Collector and Comptroller of the Customs; or where there is no comptroller, then to the naval officer of the port or place where the several prizes shall be brought, and in virtue of these our instruc- tions you will require of them, in behalf of the Crown, to render you possession of all ships and car- goes, and portions of cargoes, which have been de- tained under the above mentioned embargo, and all such ships, &c. as have not yet been brought to adjudication, you will cause to be proceeded against without loss of time in the Vice-Admiralty Court, within whose limits each specific prize shall be brought. " And in case you have to encounter any impedi- ments to the obtaining immediate possession of the said property, by persons who may have assumed con- 1 1 ' ! 1 1 ' ^ i-Hj ■ ii i i; 1 1 ~^^^^j , r^^^Hi ^l^^l '■' '-i , l^'l^l 1 f; 1 lJ^^^^I '• r ul >| 428 CASES DETERMINED IN THE ^«i.io„?'* ^'^^"^ ^^" *^e same before this or appointment shall __ have reached you, you will not fail to make instant Feima^^mi.. application thereon to the superior civil, military, or naval officer of the port or place where such obstruc- tions are opposed to you, and we are persuaded you will obtain ample authority from them to protect the interest of the Crown. In such cases as you shall deem it necessary to appoint any sub-agent or sub- agents, to carry into effect an) of the powers hereby entrusted to you, you are further authorised to make such appointment." This was certified to be a true copy of the original by the Registrar of the Court of Vice- Admiralty at Bermuda, attested by the Judge of that court. By another instrument, dated at Bermuda on the 25th of January, Mr. Dougan appointed Mr. Tho- mas Snook his agent or sub-agent to the purposes above stated, for the ports of Halifax, Newfound- land, and all ports and places on tiie coast of British North America. This was signed by Mr. Dougan, and witnessed by James Huchans, but not in any other manner authenticated. A petition was given on behalf of Mr. Dougan and Snook by the King's Advocate, shewing, that the said John Dougan was on the 3d day of November last appointed agent to the commissions appointed by the Right Honourable the Lords Commissioners of His Majesty's Treasury, to receive, take, and dispose of all the ships and vessels with their cargoes, which has been condemned in the Vice-Admiralty Court of this province, as droits of His Majesty ; and that the said Thomas Snook has been duly appointed sub- agent, for the purpose aforesaid, by the said John Dougan. That the said Thomas Snook has demanded from Hmshorne, Boggs, and Co. Willian Ji/re, Andrew COURT OF VTCE-ADMIRALTY. 429 Wright, Thomas Godfrey, Thomas Ileaviside, George Redmond Hulhert, and Thomas Maynard, Esqrs. agents for the capturing ships; and from Charles Hill the younger, Esq. Deputy Marshal of this wor- shipful Court, possession of the brig Malcolm, (then followed a list of forty-nine ships) together with the cargoes, all which have been, by the decrees of this Court, condemned as droits to His Majesty; and the said prize agents and deputy marshal have respec- tively refused to deliver the same to the said Thomas Snook: wherefore, they pray that a monition may issue, citing the said Hartshorne, &c. to appear to shew cause why they have refused to deliver up the same. This petition came on for hearing on the 17th of February 1813, and was argued by the King's Advo- cate on benalf of Mr. Snook. Mr. Snook's Petitions. February 17lli, 1813. 111 Judgment. — Dr. Croke. The monition prayed for in this petition is not a matter of course. The party applying first must shew that he is intitled to it by the powers vested in him, and likewise that the other parties mentioned are proper persons against whom it ought to be di- rected. In the first respect, Mr. Snook states himself as " agent to the Commissioners appointed by the Lords Commissioners of His Majesty's Treasury, to receive, take, and dispose of all ships and vessels with their cargoes, which have been condemned in the Vice- Admiralty Court of this province, as droits to His Majesty." To prove the authority so stated, Mr. Snook has produced an instrument by which he is appointed " to take charge of all American ships and property which may be already detained, or that may hereafter be brought into port under the orders of J ! I M i tif k i, ! ','1^ 4J?0 Mr. Sn.ook's Petitioni. CASES DETERMIJ^ED IN- tHJEi His Mkjfe^ty's Courttil of the 23d June." Between thcf petition arid the iri^trtiment produced- to support ^•'TsTsf "" ''^' ^^^'•c is a complete variation. A pov^er to receive all vessels condemned as droits to His MqjesUj, i« v^ry different from a potvdr to take charge of vessels detai7ied under a specijlc order in council; th6 peti- tion is therefore not supported by the documents. The Court cahuot consider what the agents would be entitled to upon this petition, because the whole foundation upon ^^hi(ih it rests is not established; neither can it act upon the pd\vers described in the appointment itself, because they form no part of the petition. As to the other point, the persons against whom the monition is prayed ,— tliey are the agents for the capturing ships, and the deputy marshal of this Court; and the ground work of the application is, that Mr. Snook had demanded from them possession of certain ships and cargoes there, stated, to the num- ber of forty-nine, which had been condemned as droits to His Majesty ; and that they had respectively refused to deliver the same : wherefore he prays that a monition may issue, citing them to appear to shew cause why they have refused to deliver up the said ships and cargoes to the said Tho7nas Snook. Now the marshal is the officer of this Court, he has pos- session under the authority of this Court, and his possession is the possession of the Court itself; with- out an order from the Court he could not deliver up the possession, he would be guilty of a breach of his duty if he did, and would be liable to all the penalties and consequences, which as a public officer. he would thereby incur. Even where property is condemned to the captors or others, the marshal cannot deliver up the property, even upon the pro- duction of the sentence of condemnation, without a Ji. 431 Mr, Snsok's Petitions. COURT OF VICE-ADMIRALTY. special order from the Court to that efffect. The ob- ject of the prayer of this petition i^ therefore to call the officer of the Court to account for not having Fubmary mh, complied with a demand, which he would have been ^^^^' guilty of a violation of duty if he had obeyed. With respect to the prize-agents the same observations will apply to them, as they arc likewise in some measure officers of the Court, or at least under its controul, and could not part with the custody but under the authority of the Court ; nor does it appear from any thing stated in this petition, or any affidavits which accompany it, that the prize agents are in possession of the property. It is stated that the ships and car- goes have been condemned to His Majesty, — the right of the captors' agents to the custody had there- fore expired, it is to be presumed that they had given it up, and that it remained solely with the mar- shal. If indeed the petitioner had established his right, and it appeared by affidavits or otherwise, that the captors' agents without any right did hold and detain this property, the Court would issue a moni- tion against them, requiring them to surrender it; but no such fact is alledged. It appears to me that the agent has begun at the wrong end. He should have made his first applica- tion to this Court for an order for the delivery of such ships and cargoes as he conceived himself intitled to. To this petition it is impossible for the Court to accede, and I recommend to the agent to begin de novo, in such manner as his counsel shall advise. A second petition was afterwar given in on tlie ^d Februarij 1813, stating Mr. Dougans and Mr. Snook's powers according to their appointment, and praying the Court to order all such American vessels and property, now in the custody of the Court, as 1 1, 1 , 1 1 .,] I I' ' iii >i> ti 43d CASES DETERMINED IN THE ^petWoT* *^® **'^ commissioners are authorized to take charge . _ of, to be delivered to the petitioner as sub-agent of John ^'^TsTs/'"'' ^o^San. This petition was admitted by the Court, but the agent was directed to specify the particular vessels and cargoes which he claimed. This was done in a third petition, dated the 25th of February, in which it was prayed, that the brig George, John Rohertson master, captured on the 8th of July 1812, and condemned to the captors for breach of His Ma- jesty's order in council of the 26th April— ^wii the brig Malcolm, Ichabod Jordan, master, which was captured on the 24th of June, and had been condemned to His Majesty, as having been captured previous to the declaration of war, might be delivered up to him, and that the claim of the captors to have the ship Marquis de Somerueles, captured on the 10th July last, and the brig Phoebe, captured on the 19th Sep- tember last, both now under adjudication, might be rejected ; and that they might be condemned as prize to His Majesty, and delivered to the Petitioner. Judgment — Dr. Crake. These vessels have been selected from three classes of ships and cargoes, which stand under different cir- cumstances, to obtain the judgment of the Court upon each of them respectively, to lead the decisions upon the other cases in each class. The first class of vessels and cargoes, both wfh respect to the time of capture and their number, is that which is represented by the brig Malcolm. She was capured on the 24th of June last, and has been condemned to His Majesty; she was bound on a voyage from Madeira to Portland, and was con- demned as American property, captured previous to the declaration of war. This vessel having b(;en condemned to His Majesty Febniary 25th, 1813. T. COURT OF VICE-ADMIKALTY. has become absolutely his property, and he may dispose of it as he pleases. He may appoint any per- sons whatever to demand and to receive it on his be- half. The Treasury is the usual office for the re- ceipt of llis Majesty's Auei, and if any person' Appears here properly constituted by that board for that pur- pose, this Court is bound, without delay or hesita- tion, to deliver up His Majesty's property to them, hi the mean time, until a proper authority is given, this Court is the constitutional trustee and guardian of the property u;, behalf of the Crown ; to part with the custody to any persons not authorised would be a violation of its duty, and it is therefore incumbent upon it, when a demand like the present is made upon it, to examine scrupulously the powers of the party, not only as to their foundation, but as to their extent. A power, given to receive one kind of pro- perly, is no a 4'hority to receive property of another species. Mr. Dongmi is appointed " to take charge of all American ships and property that may he already de' tained, or that may lureafter he brought into port under the orders in council of the 23d June last." I must confess that there is a considerable obseurity in this appointment. No vessels were directed to be detained or brought into port by that order, but on the contrary, it was merely a conditional revocation or suspension of the former orders for detention of the (th January 1807, and of the 26th April 1809; I am not disposed to defeat what should clearly ap- pear to be the intention of this appointment by a literal adherence to the mere words of it, but rather to give it full effect by the most liberal construction. The order of the 2Sd June therefore must be taken in conjunction wi *8i3. sent by the King's advocate, to the treasury, this is transmitted from thence to the American commis- sioners, who have now sent it to their agents, with directions to proceed against the vessels there men- tioned, as droits of the Crown, according to the in- structions before given. But it must be admitted that this is very far short of a direct authority, and a very lame mode of supplying the defects in their power of attorney. The Court had a right to expect a direct power of attorney. It cannot however I think now be doubted but that the vessels which were captured before the 13th of August were those which have been entrusted to the care of the Ame- rican commissioners, and that it was the intention of those commissioners to depute their agents to the management of them. It must be remarked that the real powers which appear to have been thus intended to be vested in those gentlemen, are so totally dif- ferent from those which are expressed in their power of attorney, that the list now transmitted to them is confined to the captures made before the 13th of October, which the power of attorney does not men- tion, and that the only cases omitted in that list, are the captures made under the order of the 26th of April, and, by implication, under the order of the 23d of June, the only captures to which the power of attorney extends. The conmn'ssioneis have been guilty of great negligence in sending out those gen- tlemen with such insufficient powers, by which all this delay has been occasioned. It is a serious thing for this Court to part with the custody of His Ma- jesty's property without sufficient authority. But these iresseis and cargoes arc daily deteriorating. |!i:' '11 I M I i! Hit F *- fir 442 CASES DETERMINED IN THE ^PefirC' ^'*^^* expences are incurrin|r, the most advantageous time of disposinj^ of thcin will speedily elapse, and 3%5ti,ia,3. the whole property will be shortly frittered away. To prevent these losses, the Court must take upon itself the responsibility of acting upon the imperfect authority under which those agents appear. I direct therefore that decrees for delivery be made out to them. Ankit'S of all ship|)(' l! '! I, M ' If 1 'I I I, t 1 iJM 448 CASES DETERMINED IN THE The Economy. March 181J. H colony, in strict compliance not only with the jrds , and spirit of the 49th of Geo. III. but with the intent and directions of His Majesty's ministers who have expressed the strongest desire that a friendly and commercial intercourse should be preserved wiih the neighbouring states of America. It can be argued for the claimant, that the importation of this cargo was allowable under the order in council of the 8th of ^pril last, which makes it lawful to import, into Halifax, the articles in question, in any ship or vessel except a vessel belonging to France, without, specifying to whom the property may belong. The spirit of the order is, therefore, clear and disccrnable, and can mean nothing less than that, if neither the importing vessel nor the cargo be French, though both belong to any other enemy, the importation may be considered as lawful. Since the publication of that order, the states of America have become the enemies of Great Britain, and the present licence has been obtained ex ahundante cauteld, but the Court in considering its validity, should keep in view the spirit of the 49th of Geo. III. and the important order of April, as the statute, the order, and the licence, are all tending to the same wholesome object, the ready supply of this province with articles of the first neces- sity. It may be said that the order oi April cannot autho- rise the trading with the enemy, that the license can- not give that permission, though under the hand and seal of His Majesty's representative of this province, and as was also contended in the case of the Sally Ann, that the King, upon such an occasion could not delegate his authority. Against these positions, it may be contended, that the order of April does toti- dem verbis permit a trading with the enemy in ships, and, virtually, in goods ; that the governor of the proviucej for the safety or protection of the province, 'Ir COURT OF VICE-ADMIRALTY. can pledge the faith of the government in a measure of this sort, and IioM himself responsible to His Miijosty for so doing; and as to the power of His Miijesty to delegate his prerogative upon these oc- casions, it may well be said, that that power has been fidly exercised by His Royal Highness the Prince llegent; who, by his Order in Council, of the 3d October, retrospectively confirming the licence in question, hasauthoiiyed and delegated the governor to grant such licences, notwithstanding the ships and cargoes shall belong to the citizens of the Lntted States, or be the projierty of British subjects tra- ding with that country. Upon thegood faith, the ho- nour, and the policy of supporting the measure of this licence, there cannot be a doubt. There is al- most an indelicacy in raising a question upon it, more especially when it is considered in what a pure and respectable source it originated, how much the comfort and welfare and protection of the province may depend upon such indulgences, and when grant- ed to an enemy, how much the honour and honesty of our government are implicated in the sanction and confirmation of them. Judgment was given by Dr. Crake to the following purport : This capture was nmde by the Liverpool Packet, a private armed schooner of Liverpool, in this pro- vince, on the 17th November, 1812. The master has given in a claim on behalf of himself, and of John, G. Ladd, of Alexandria, both citizens and subjects of the United States of America, as the sole owners and proprietors of the brigantine ; and on be half of William Ladd, of Jioston, the owner and proprietor of the cargo, as the sole property of an American ci- 2g 449 Thf Economy. MuTQh, 1U13. ! 1 Ml ! ^ 4M CASES DETERMINED IN THE Mveh, 1U13. u. tizen. The cargo is clsiimed as consistinj; of flour, corn, and rye. But it a))])ears frotn tlie manifest, tliat tlicre were also six barrels of cigarrs. The vessel clearer! out at A/txandria for liostou, and is alled^ed to have been destined for the port of IJa- lifax. This case has been twice argued. At the first hearing it was the wis!i of coinisel, in which the court concurred, that it should be argued, and de- cided if possible, without bringing forward any ques- tion as to the validity of the licence. In that stage of the cause, there were two ques- tions principally made by the king' sadvocate, arising upon t)ie facts alledged. It appeared that the licence, upon whith all the claimant's case depended, was not produced, or made known to the captors, at the time of seizure, and did not moke their appearance till the master had bet n separated from his vessel, and had been at Boston, i agree with the king's advocate, and can hardly think that this is a suffici- ent compliance with the condition of the licence, which directed that " the party should take care that the licence should be always kept on board the said vessel with the cargo." The plain object of this clause must have been, that the licence should he always on board ready to be produced, and that it should have been conuuunicated to such persons as had a lawful right to deuiand it, and parti- cularly to lirilish cruizers. It could answer no purpose to keep it concealed. De nori apparenti- bus et nan exislentibus eadein est ratio. But the non-appearance of this paper, when it ought to have been exhibited, and when its being exhibited was probably the reason that the vessel was seized, renders very doubtful the fact of its being on board COURT OF VICE-ADMIRALTY. Ml at all. By this alledj;;e(l suppression the claimants' cuse Inbouru under rdusideialnc dillicultienas to the evidence necessary lo establish so material a fact. The first and clean st proof that tlie licence was ou board, woulrl have been sup|)lied by the immediate production of it; a very inferior degree of evidence is now offered in lieu of it : nanie!y, the mere oath of the master, after he has been separatt^I from his ship, and has been in the Uiiitc^f Slalts — an 1 1 ■; 1, i' i, r ^ ; H ■i \ \ :f|, ' :^i 1 IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I '- IIIIM ■ 50 ""'^= ^ tiS, lii! 1.25 1.4 IM |||M IM 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 A fkr^'%^ States of Amerieu, in any sl!n> or vessel, a cargo of flour, meal, corn, or pnni- gions of any kind, and also pitch, ta^r, and turjjtu- 453 Thp Economy, March, lbl3. !l', f ' ') nil ll 1 1,, liiiB'! ,ll'i 1 1 1 i 1 i| ! 1 1 1 III 1 1 m 454 CASES DETERMINED IN THE The Economy. Jdarch, 1813. tine, taking care that this licence shall be always kept on hoard the said vessel with the cargo, and also taking care to enter the same cargo at His Majesty's cnstom-hoiise at Halifax, and to deposit this licence in the said cnstom-honse when the said entry shall be made at Halifax. Given under iny Han. I and Seal at Arms, at Halifax, this oih day of September, 1812, in the 52d 1 tar of His Majesty's reign. J. c. sncubiiooKC. By his Excelh ncy's Command, H. H. Cogswell, Dcp. Sec. The captains end commanders of His Majesty's ships and vessels on this station are hereh> required not to molest the vessel, having this licence on board, while in the prosecution of her vo\uge. H. SAWYElt, Vice Admiral. This licence, as extending to vessels of every de- scription, is in opposition to the system of naviga- gation laws, and, as protecting the property of an enemy, is contrary to the established maxims of law. The navigation laws can only be dispensed with hy the same authority by which they were cieat( d, namel), the British Parliament; and there is no power either in the crown, or in any persons ap- pointed by it, to grant exemptions from their opera- tions. His Majesty by his prerogative may allow an enemy to trade with his dominions. Upon diese respective authorities must this licence depend for its efficacy. The original act of parliament upon which this licence is founded is the 49th Geo. Hi. c. 49. which has been continued by .52d Geo. HI. c. 20, to the 25th March 1815. It enacts "That it shall be COURT OF VICE-ADMIRALTY. lawful in any ship or vessel in any manner owned or navigated, to import into and export iVoin any port or ports within the province of JS'ovn Scotia ov New Brunsivick, which sholl be specially apjxiintod for thatpurposeby HisMaji^sty, by order in council, any goods or commodities which iJis Majesty by order in council shall specially authorize and allow," By virtue of the powers vested in His Majesty by this act, his Royal Highness the Prince Regent, by an order in council, upon the 8th of April 1812, was pleased to order, that " during the continuance of the said acts, until further order made thereon, it shall be lawful in any ship or vessel except a vessel belonging to France, to export from the port of IluliJ'ax, to any port belonging to the United Stales from which British vessels are excluded," certain articles there described, and "also to import into the port of Halifax, iiom any of the said ports, wheat and grain of any kind, bread, biscuit and ilour, pitch, tar and turpentine, such articles being of the g; Avth, produce or manufacture of the said States." 1st. It is not alledged that the licence, which bears date upon the 5th of September, 181 '2, at the time when it was granted, had any other validity than what is derived from this order in council. Since that order extended only to bread, biscuit and flour, pit«eh, tar and turpentine, the other articles specified in the licence, mea^ and corn, unless the word corn should be supposed to be synonymous with grain, and provisions of any kind, are not comprehended under the order in council, and their importation being against acts of par- liament, no permission could legally be granted to that effect. But although the licence could aflbrd qo protection to otlier articles than those in the 455 The Economy. I "I f , I I 1 II 1-1., ''F1 ' i t 11 ( Mmtsk "iff hi III A56 The Economy. Mwreh, X813, CASES DETER\fiNr:n m the Order in Council, yet I am not absolutely prepared to say that the extending of il to those ilk-gal ar- tides would render it void as (o the other ariicles which might lawiully be imp..ite(l; or that the ini- portation of cigarrs, or tobacco, though u.iIaNvful, and thoug:li those articles are liable to conHsc afion] would deprive the parties of the benefit of their licence, or of other privile^^es to which they are intitled, as to the other articles. With respect to the articles specified in the order in council, and of which this general cargo con- sists, no doubt, beft.re the declaration of war on the 13th of October, they might have been im- ported without any licence at all. The permission is general, no licences are declared to be necessary or are directed to be granted, nor is any power or authorUy given t(. grant them. With respect to those articles a licence therefore was nugatory, and unauthorized. It could be considered merely as declaratory of the order of the 8th of April. Mr. Reynolds under this licence had no more privileges than he himself, or any other person, had without licence, by the order in council. Nor by any transfer of this licence, if it were transferable could he convey to any other person, a greater pri- vilege than they were before entitled to: Uidess therefore this licence, by any subsequent authority acquired an efficacy which it did not possess at the time of granting it, and which T shall afterwards consider, we must refer to the order itself by which the permission to import, whatever it was, was really given. The general order in council is the real licence. Having thus cleared the case of all unnecessary considerations, it reduces itself to two questions, namely, whether the order in council of the 8th of COURT OF VICE-ADMIRALTY. 457 Jpril, in ilsclj can authorize an enemy to import a car};o into this port; and secondly, whether that order and the licences granted u der it, not having originall} snch a power, have heen so extended by the order of the ISl/i of Oclober, as to anthorize such importaiion. The first «|uestion seems to mc to be determined by several decided cases. The first cases 1 shall mention are tliose upon the act of the ;j}nh (k'o. J J I, c. 98. for allowing the im- portation of Spuniuli wool. That act declared it •' lawfnl to amJ for unt/ person or persons to import into Great Britain, Spanish wool from any poit or place whatever."' We were then at war with Spain. It was a general permission, like the order of the 8th of April, and the words are most comprehen- sive, any person, tlie snbject matter too was ex- pressly the produce of the enemy's country, Spanish wool. Yet doubts were justly entertained whether his Majesty's subjects could purchase of the enemy and import Spanish wool, and whether the same would not be subject to confiscation as the property of his Majesty's snbject trading with the enemy; and an order in council, besides the act of Par- hament, was thought necessary to authorize such trading. Jt was clear therefore that those general and most comprehensive words in the act did not render a trading with the enemy lawful, and con- sequently would not authorize an enemy to trade with the British dominions. In the case of the Hoffnung, Berens,* whatever arose upon this act, it was said by the court, " I apprehend that unless there are very express words to this effect to be found in the licence, I am to consider its meanin"- Tlie Economy. Marsh, XHli. \' 1,1! * Rob. II. p. 162. 4Bi CASES DKTKUMirVKO IN Tur: IM IIOJ ffoillfT to (jiut <\\((||t. (of ^i vmv." mi ciuriiy 'um.k,Mx '•''*" ^^Z" iimimmO ImK us mviii^ MM'ii a lil., riy <.i,|y tjtH(N to l||||Mir(. Illltl. l\H I IIIKlt-i-.slillMl il, oil t| own urroiiiit ; :iiitl H it a|>|M;iir(| tlial (lir iiii(,(„(a. tioii was oil tlu< accoiiitr «»1" ollin- (han liiift^/t iV|,t. <;liaiit.N. 1 sIkiiiIiI |ioI lui a Unal IKMlatinii." IIS IIU< In (lie iitui'sv I on *'«/;/ '•.s/zrvi'-.* (Ill n |i( run; uiulor tlM> siiiiir ail. llu- < l;ui.iaii( had iiitl iir-anvcd fiMUijs iit(M.s(. and III. nnul lultl (Itat (In- uonU •* any |u»srop(r(y. UTv is a \i\y iMv niNc wliicli was iUvuUaI IC lll|< Tl after fv«rv r.vUusinii hud I Ktii |a;iviii to licciKMM hy a very cidaiyvd nmstnictioii, that o( the ( riaiuic, March (;uh, lill().| JSi,- Wm. s (I the ( word 'ousiiii Mu- cott said. of us odurt has luvi-r yet roylnird ihe |)ro|Mr(y ncmy. ixcipt in those iiiJ^laiKies where llio s " 10 whomsoever the |.ro|i( rty may appear to l»eloiii;;' ttie int rod need into the (i( vuc.v; whei<; lh( words oeeur they have heeu h<>ld to exelii(U> all quiry into the propri< (ary iiitt rest; lint tl (omul in the lieenee on hoard tl >sr eii- liey are not lis vesi^i.l, and tlu« court therefore i»» not at liberty to dei.art tioui llu general ride. " le present ease, in deseriliin/.c the ves.stls by In 11 uliieh I he importation shall hv made, word that etl'eet i\o occi any ship or vessel i luaniier owned," which would e\ltnd t( vessels, but respoctiiiir tlu' earyo no such to be found, but shall be lawful to n s to any ) eneiiiios le eartio no such words are merely j^eneral expnssioiis "it int ipoit." VVIiicli arc scar CO so * Rob. U. lOo. t Edw, Lie. Ca, p, 20 rOdllT or VICK-ADMIR/VT/rY. rtunpn'linHivr iin J.Ih« vvonlM •' luiy [H'I'mou" in llio lU'tH uiiil oi'dcrs Im-Ioit NJiilrtl. Tliiit, liJM IMitji'Nly'N f^Mvrriiiuciit uiidrrHlooil tliiH (o Im< ||i«> srillril Liw ii|i(Mi |Im> Niiltjirl In rvi oidn- III' cniiiicil <)(' (lie l.'llli ol' (iiiohvi^ IHI'2. TIm'V rli iirly Hii|t|iiiNry tlir piiMdiKlrd. And liit'irrorr us it hum IImiiij;Ii( rxpnlii'itt, lliiil \\u) ('.xpoilaliiMi )um1 iinporlalioti Hlionld nMlwilliHliiud- in^ IIk' pi'CMt'iil iioHliJilicM ronliniic, llir nlin/;i;ly, not. u'UlistutiUiiis>; l/ic s/n/is and cndly, nucIi then hcin^Mhc und(!rslandi.it^, ami Much the InttMition of ^ovcrniucnt, on the Hanic o.iy upon which war was dc(;lar(Ml hy the order Cor re- pri/als; to hf^alizo a trade which was no longer law- in! under the lornicr orders (d" the nth u{ April, tlilh ui Oelober was issued. And it has heeii ar;^ued that a liceiicf! f^rantfjd under th<; former order, thoiifijh orij^inally it nii^dit not lave been suflicient to proUiCt a trade with tin; enemy, hy a re- trospective power in theorrhrof the J.'tlh Oelaicr, i» rendered valid, and eftectuai to the full extent of m ^1 1 t 1 i KdlNOMV. i!:i \ — 1 — . ,-.—mt 1 /l/»tY. Marth, lUlJ. wliom that advire was },Mvmi. Tlio learnwl counsel • lor tin- ilaiinaiits lias iiidiil^'td liiinsilf in iiiiicli de- clamaliou, in the course of which he has ancctcd to treat all diucuHsioii respectinjL-- this subject as an in- delicacy : and he has most stroui^ly deprecated a de- cision of this court a;;ainst the validity of the licence, as a breach of the national faith, and as dextruc- tive to the convenieuc-es and comforts, the policy, and the commercial interests of ihis province, upon what has been wtihul a dry point of law. It nii^ht be a short answer to all this reasoning? to say, that a court of justice is not to decide by considerations of that nature, but by positive laws, that [larties tan be intitled to no farther privileges than those laws have delined, and that they can blame themselves only if they have used suo'i instruments under circum- stances very different from those under which they were granted. Yet there ujay be no impropriety in my proceeding still further to observe, that whatever respect is due to persons in high stations, and cer- laiidy this court is not disposed to trespass upon that respect, some consideration likewise is owing to the inhabitants of this province, and even to the enemy; and that, instead of being kept in darkness respecting the effect of documents for which they are paying large sums, and upon which they are em- barking property to a considerable amount, it is ma- terially for their benefit that the validity and extent of those instruments should be fully examined, and distinctly understood. And with respect to some other of those assertions, no man can entertain more zealous wishes for the prosperity of this province than myself. To promote the happiness of my fel- low creatures, at all times, and in all places, is the sublime precept of that holy religion which I profess, and an attachment to this proviwce in particular. ■ I,, m COURT OF VirE-ADMIRALTY. from a long irsidcuoe lu'ie, lias aMimatrU my general fi«MiH« of duty l»y my own personal fet'liiigs in its favour. Hut I have always hi^en of opinioji that this (I»'siial)le<)hj,!(:( n>ay he niostcfloctually arroni- plished, not by hastily .u;ivjng- way to oviry crude «n;; ^^1 n j' j > 1 I'lH , U«| ! |i|'iW 1 466 CASES Determined in the The Economy. March, lbl3. I title means are used for their protection. To give up security for mercantile profit is to risque the (Jes- tructiou of both. As this systeuj isof such importance to the whole Empire, the colonies in particular receive more bene- fit from it than any other parts. IJesides that it is for their particular advantage not to depend upon foreign shipping, or the caprices of foreign merchants, and that in the norlhern colonies ship building is a staple article, a maritime defence is more necessary to them than it is to the mofher country. If the oaken ramparts of the British \H\iir\ih should even decay, a numerous popidation, full of resources, might resist with success an invading army. But the colonies, weak and defenceless in themselves, must imuiediately fall to the iirst eneujy who can command the seas. But for the navigation system, this country might at this moment have presented the melancholy spectacle too often exhibited upon the continent of Europe, plundered and ruined, and the flower of its inhabitants drawn away by con- scriptions to shed their blood as engines in the hand of a tyrant for enslaving their fellow creatures.. Not- withstanding any plausible arguments which may be brought against them, by prejudiced, artful, self- interested, or well meaning, but inconsiderate per- sons, from any general maxims relating to the rights and the unrestrained freedom of commerce, the in- defeasible claims, and the profit of the colonies, and 1 know not what other popular topics; whatever inconveniences, whatever privations, we may suffer from those laws, let us ever hold them fast, and cherish them, as the support of our best interests, and as the palladium of every thing that is dear and valuable to us. Cases of necessity indeed may arise which may COURT OF VICE-ADMIRALTY. ftiliy justify a temporary deviation from them, but if we are truly sensible of their importance we sljniild lake care that such cases are real and not iniiiginary. For by giving way without sufficient cause, upon every occasion, and to every local and tej:i[)orary emergency, the whole may be insensibly frilfcred away. If t!io hand of heaven, in the or- dinary course of its providence, afflicts us with na- tural calamity, let us kiss the rod, and let us en- deavour to alleviate our distresses by the readiest means in our power. But all thealletead of being necessary, cannot but be injurious to the agricultural interests of the country. It appeared to me therefore that at the time of issu- ing these licences, otie part of them was nugatory, and the other part an infringement upon the laws of navigation not founded upon sufficient reasons. These are the principles by which 1 have been actuated infornjingan opinion upon this subject, in- dependent of the rules of law, and I have been com- pelled to state them, from the line of argument which was adopted at the bar, and because I thought it necessary to correct some misconcep- tions which seemed to have been entertained, and to efface some unfavourable, but erroneous, im- pressions which might have been formed. I trust too that these considerations will not be altogether without their use in this application, to the deci- sion I am about to make, and will shew that to support the navigation system, and in so doing to pronounce against the validity of this licence, is not only to adhere to the strict maxims of law, but to promote the best interests of the province, properly understood. I condemn this ship and cargo as a droit of Jd' miraltif to his Majesty, having been taken by a non- commissioned vessel. iji m \ 'I'D' ! M r j^ n ( 1 I ' ' M i« 1 i 1 470 CASES DETERMINED IN THE The Reward, Uill. March 18 th, «r'MU«rbyMr. T^HE Kiiiffs Advnculefor lh:i raplors, contendf .1, Scolila* that the enemy was here claimin- under a li-' AmerUa, yoid. cciice, Ostensibly, from Vice-Athniral Sawjjer, hut, in fact, granted by Mv. Allan, hite consul of l:is Majesty in Boston. That f;P!)?leman's functions. equally with those of Mr. !■ osier, had enectually ceased, upon the declaratiuii oi" war, by Aiiuriat, against Engluml ; and, if th; y liad not, lie has as- sumed an important power, v.-.d warranted by his office, or by any authority dekgated to him. It is true that Admiral Saicijcr, from the best aiul most judicious motives, wrote a letter to Mv. Allan, directing- hiuj to give certificates of prolecfioii, to any vessels that might be inclined to load with pro- visions, for the |)orts of Spain and Pordioal; and, assuring hinj, that those certificates would he res- pected by His Majesty's cruizcrs. But this was the exercise of an authority, on the part of the Admiral, for which there was no legal foundation, and, at all events, it coidd not be delegated to a person residing in the enemy's country. Jt is said however, that this licence is confirmed by His Jloyi\\ Highness the Prince Regent's order of the 26th of October, by which His Majesty's Ships, and the Courts of Admiralty, are directed not to interrupt or detain any ships in possession of such licences. But this is not one of the licences, within the con- templation of that order. Admiral Sawyer has granted passports of various descriptions, but the one in q uestion is more properly a licence granted by Mr. Allan, which cannot be confirmed, either by the words, or spirit of the order. The licence is therefore invalid, and a condemnation must ensue. COURT or VICE-ADMIIIALTV. flie SolicilorGencritl, on llie part o/ I lie claimanls. Alter the rigid decisions that have hitely taken pluee, in this conrt, upon thesjd»ject of'licenc (is, it would 1)0 needless to contend, upon principh; or |)ieced( nt, /'or the validity of the present one. This is certain- ly the licence of Admiral Saa-j/cr, and not of Mr. Allim, who has been the nieie instrument of carry- ing into execution the good intentions of the ad- njiral. It cannot even be considered to have beea granted in the enemy's country, as the Aihniral's letter to jVJr. Allan, the founchition and very essence of it, was written in ll(tiijiix\ and transniitteil to that gentleman, at Boston, in order that the enemy shipper might there lereive an auth> niicated co, y of it. It was, therefore, no delegation ot the Ad- miraPs authority, and no assumption of power on the part of Mr. Allan. U|)on the laith of its pro- tection, the enemy !ias ventured his property in a good cause, and he is now interrupted in a pursuit, favourable lo the views and |)olicy of the //;•«/<*/( go- vernment, by a prosecution m direct oppo>ition to tiiose views, and inconsistent with that fiolicy, which Courts of Admiralty, in cises of this sort, are justilied in consitlering, though such policy may mi- litate with the rigid principles of ualional law. Ihit there has been an express coulirmatiou ot this licence, on the part of the governnieut. The I'rince Uegent's order of the ^(itii October contemplates the very licence in cpiestion, and coidd have none other in view, as not one of this dtscriptiou has heets, or couUI have bten granltd in aiiy other way. If lite order has not a direct reference to tiie licences granted luuier the leiter of A'imiial i^awyer to VIr. Allan, it can have no object wl.atev^r, and is ibeie-' fore, totally ineffectual lo any purjioso, 'J'lie nuih is, that in all these cases in which the sunimunijua of f| 1 n 1 471 m iH The '^ - !!i R'CWVHD. '''1 11 Murdi 18tll, iln \\i\\i. ' 1 1 . 1 1-' 1 ': • '•] 'M '. 1' ;!| ] 1 : i '!'■ ^ p 9 ■I 1 i 1 /'':h} 1 m Irr I ■• 'ill m 472 The Reward. March ifjtii, 1813. I f CASES DETERMINED IN THK national law may bo correctly, though harshly ad- ruinislered, the government of the inoiher country feels itself in liononr hound, by confirmatory oiders or otherwise, to give effect to those official acts of his .Majesty's commanders, in distant parts of the world, which are founded on good policy, as it rcKpects the parties who are interested in the con- firmation of theiji. Indeed there seems no reason- able objection against the same line of conduct being pursued in the judgment of our courts of admiralty. Judgment —/>;•. Croke. This vessel was claimed as American property. Her voyage was from .Salem to Lisbon, with tloin; peas, and fish, under an alledged licence. She sailed the 9th of October, Jrl2, and was captured by the General Smith privateer, of Aetr linins- wick, on the 1 0th of October, and was carried into St. Johns. The licence was granted by Andrew Allan, Esq. His Majesty's late consul for the JSorthern &tal€s of America, and was as follows : *' To the commanders of any of His Majesty's ships of war, or of private armed vessels belonging to subjects of His Majesty. " Whereas from the consideration of the great importance of c«)ntinuing a regular supply of Hour and other dry provisions to the ports of Spain and Portugal, it has been deemed expedient by his Majesty's government, that notwithstanding the hostilities now existing between Great Britain and the United states of America, every protection and encouragement should be given to American vessels laden with flour and other dry provisions and bound to the ports oi Spain and Portugal. Mi? The Reward. COURT OF VICE-ADMIRALTY. 47S "And whereas in furtherance of these views of His Majesty's government, fl. SaH\i/ri, Esq. vire-ad- miral and coniniandrr in chief of His Majesty's ^"i^ia?"'' squadron on the llali/ax station, has uese or Spanish ports, nnd which is designed as a safeguard and protection to such vessel in the prosecutiou of such voyage. ** Now, therefore in pursuance of these instruc- tions, I have granted the American brig, Rewunl^ Amos // liertl,y certify tliat tlip anncxid paptr is a true copy of j, letter adilressed to nie by Herbert Sawyer, Ivsn. vice-admiral and commander in chief of IJ is Ma- jesty's sitinudron on the UiUi/ax station. " Given under my Hand and Seal of Office, at Bm- ton, in the State of il/«A',vtrAMA6//'A', this sevciiid day of October, in the year of our Loril one thousand eight hundred and twelve. " ANDREW ALLEN, Jun.' i "Sir, " His Majesty's Ship Centurion, Halifax, August 5th, 1812. I have fully considered that part of yoin- letter of the 18th ult. which relates to the means of ensuring a constant supply of flour and other chy provisions to Spain and Portugal, and to thelfW /we/m Islands, and being- aware of the importance of the subject, concur in the proposition you have made. " I shall therefore give directions to the comman- ders of His Majesty's squadron under my command, not to molest American vessels so laden, and im- armed bona Jide bound to Portuguese or Spanish ports, whose papers shall be accompanied with a COUItT or VICE-AUMIIIALTV. 475 March lUtU, certilicd copy of this letter iiiitlcr the consular ., ''"'"' seal. ^ " I have the honour to he, " Sir, " Yoiii- most (»h('(lient lunnhle Servan^ '• Mi:unKUT SAW YDIi, Vice Adm." " To Aiulnw Alhtn, Eii(j. " British Consul, JJoslou. It is well unrlerstood, and admitted, that this li- cence can have no validity from the anthority of xMr. AUu7i alone, and the [)rotection aflbrded hy the let- ter of admiral Sawyer, can avail no farther than a>J it has heen recognised and confirmed by the I'rinco Regent's order in conncil of the 2(Jth October, 1012.* It may be necessary to state the origin, and historv of these licences. Vice-Admiral AVntv/cr, when he had the command upon this station, being sensible how important it was that the British trooj)s in Spain and Portugal should be supplied with flour, and other provisions', very properly took upon himself, as far as it was in his power, to protect vessels engaged in that service by licence. From the guarded manner in which those licences are expressed, he seems to have been fully aware of the extent of his own powers. It was evident that he could not legalize the enemy's trade, and he therefore merely gave directions that the commanders of His Majesty's squadron under his command, should not molest American vessels so laden, and so destined. These directions, all officers under his command were bound to obey, and perhaps commanders of vessels upon other sta- * See Appendix, D. lilli! ent was pleased to order in council, that all such American vessels, and cargoes of grain and tiour, pruc( ediiig from the ports of iIh- I nilcd Slates of Ammcu lo Spam and J'orfncful as ^lioidd he furnished viih passports or certihcates of prottction, grunted hy vice-admiral Suir^n', (onmiauding liis ^^dje^ly's ships on the y/a///;/^ station, should h,^ allowed to proceed, and that if they should nave been de- tained, they should be liberated and restored. It appears by these papers, that vice-admiral Sairj/^i (l\i\ not c< ntine himself to licences issued immediahly hy himself A proposition was made to him by letter from Mr. Allan, the Jhulh/i consul in the rolled Stales, for further means of ensuring a constant sup|)ly of those articles for Spain ami Jportugal. Jn this j.roposal vice-admiral Sairi/er ccncnrred, and in his answer to Mr. Allan, he says, *' 1 shall give directions to the commanders of His Majesty's squadron under my command, not to molest Anurkan vessels so laden, and bona file bound to Porlugncse or Spanish ports, whose papers shall be accompanied with a certified copy of this letter under the consular seal." So that b<>sides the admiiuj'sown licences, an authority was 'hus given to Mr. Allan to niultipiy ctrirted cop'.-s of the ad- miial's letter, and to grant protections to any ex- tent. ^ The only question tlieii is, whether these docu- ments granted by Mr. Allan, are within the J»riuce Kegent's order in council, by which alone they can be rendered effectual. COURT OF VICK-ADMIRALTY. 477 It IH evident that tlicy rio not come witliin tlie p.^Jf^^ direct, words of tfie order. TIm y are nc.t passporfs — 'Hl^lL or ccrliJiiuUs, urantcd by vice-admiral Sawyer, or ^^"'^'^J'*"'' under his signature, hut they are licences, or certi- jicates, granted by Mr. Allan. Let us e\aniin(> whilhir lliry come within the meaning and tlie inlt iilion of tlie order. Mr. Allan founds his authority for issuing these certificates upon admiral Sawyer's Utter, a copy of which is annexed to them. The order in council not having expressly and immediately sanctioned them, the real (juestion seems to me to he, whether vice-admiral Sutryer could depute to any other per- son a power of granting licences, with whie literal terms in which they are conceived. ' I>e. tween those cases and the present (here is a niateiial distinction. AVhere a licence proceeds from an wuiis- puled auihoriiij the intention and object for which it was granted may be allowed to cuntroni and prevail over the literal sense of the words. Bnt where the question depends upon the very connlilulion of I he power nnder which tiiey are gi anted, vhen that power besides is the delegation of a high branch of the royal prerogative, no such latitude can be in- dulged, and no powers can be understood to be conveyed beyond what is most expressly defined. It is true that this is a species of trafik intended for the benefit of a very ini|)ortant service in which the Brilh/i nation is now so niejitoriously engaged, and is therefore intitled to great favour and allow- ance, but still it must be understood to be con- ilned within some bounds of law and reason. Now the British government has authorized licences for this object as fai- as appe.ired expedient; many re- strictions are still imposed upon them, and the permission is far from bemg general and unlimited. The nature of the service cannot supersede every principle of law. Good reasons may be imagined why the order in council should not be intended to extend beyond the respectable person to whom it has been granted. Though so high a power might safely be intrusted to an officer in the conspicuous station of a com- mander in chief, with so great a responsibility at- tached to his situation, yet perhaps it might not be so advisable to commit it to the free discretion of a mercantile constd. The worthiness and respecta- bility of Mr. AUaris character, indeed, was a suffi- fiieut security against any improper exercise of the power as are liab might b granted feet inte: titude of rious qu and a c have bee ther thei ward, ei was alwa age, an( The kno have ind as to tl: granted. It ma; UwAlla. upon wh liis Majei tection a confined protects a return It has useful th that it w bly confii vice were municatii by the n( ficult to 1 yer to an peditions there she V COURT OF VICE'ADMIRALTV. power i\H far as lie was concerned, but the best men are liable to imposition, and a fraudulent use might be made of instruni'iits which had been granted with the best intentions, and the most per- fect intejrrity. It is well known that from the nuiU (itude of licences which have been issued from va- rioiis quarters, the whole coastin:^ trade of America, and a considerable part of its general commerce, have been protected from British cruisers Whe- ther their vessels were sailing northward, or south- ward, eastward, or westward, some sort of licence was always to be found on board to cover the voy- age, and to disappoint the hopes of the sailors. The knowledge of these practices was very likely to have induced his Majesty's ministers to draw a line as to the persons by whom licences had been granted. It may be observed likewise that this licence of Mr. Allan goes beyond the letter of Admiral Sawifcr, upon which it is founded. The letter only mentions Ills Majesty's ships, but the licence extends its pro- tection against private ships of war. The letter is confined to the outward voyage, but the licence protects the vessel uj)on its return voyage, and with a return cargo. It has been said that these licences were more useful than those of Admiral Sawyer, and therefore that it was probable that government would proba- bly confirm them; that as vessels engaged in this ser- vice were freighted in the United States, and the com- munication with this country was very much impeded by the non-intercourse acts, it would have been dif- ficnli to have procured licences from Admiral Satv- Srer to answer the various emergencies of those ex- peditions, and therefore that it was expedient that there should have been some persons upon the spot 479 TliP Kewahd. Murch lUlh, , i 1 '! 1 't ' ■\ i t 1' t ■ 480 CASES DETERMINED IN THE RkwaRu. March iHth, 1«13. to issue them. The nature of this trade must have been |>erfectly well known to his Majesty's Minis- ters, and they must have been fully aware of that inconvenience. These certificates of Mr. Allan must also have been known to them. Admiral Sawyer officially, and of course, reported his having granted licences, and the authority which he had given to Mr. Allan to issue them. The order in council must have been made hi consequence of these reports. Since government then was perfectly acquainted with the»e certiticates, if it was intended to give them va- lidity, they would have been expressly mentioned by name, in the order of council. Not being ihere men- tioned, under these circumstances, the just conclu- sion is, that it was not the intention of government to confirm them. It has been asked, if these licences are not con- firmed, to what did the order in council apply? And it was said that it would be in a great measure nu- gatory and inefficient. 'J'his objection has been fully answered by His Majesty's Advocate, by stat- ing that the great number of licences granted di- rectly by Vice-Admiral Savjyer supplied a very am- ple subject matter for the order to act upon, and af- forded very sufficient grounds for its having been made.* Guided then by what I conceive to be correct maxims of law, and by the apparent intentions of His Majesty s Government, as far as it can be collected from the words of the order in council, the conclu- sion which alone I feel myself authorized to draw from them is, that this licence does not afford a pro- tection to this vessel and cargo, and therefore 1 con- demn them to His Majesty, in right of his Crown, * See the Order in Council confirming Admiral Sawyer's liccuc«J. Appendix, J>. I f prizals. vernraent have attri selves to applicatic His Maji pret their NOTF..- (ler had b upon the iiiunicatec time of th G The Lo nion to th( that vessel sued by ]V Bostoti, or not to be i such papei ty's cruize Lords Con and comii ingly. To the res] Commai nust have y's Minis- tre of that llan must a! Sawyer g granted 1 given to ncil must e reports, iited with them va- tioned by lere meu' t conclu- rnmeut to not con- >ly? And isuie nU' lias been , by stat- mted di- very am- , and af- Ing been 2 correct IS of iiis :ollected ! conclu- to draw rd a pro- e I con- Crown, COURT OF VICE-ADMIRALTY. having been taken before the order for general re- prizals. If it is conceived that His Majesty's go- vernment had other intentions than those which I have attributed to it, the parties may intitle them- selves to the full benefit of those intentions, by an application to that court; which, being composed of His Majesty's Ministers, is best qualiiied to inter- pret their own acts and meaning. Note.— The following order from Sir Robert CaU (ler had been sent to the Captains and Commanders upon the American station, but had not been com- municated to the Court of Vice Admiralty at the time of this decision. (COPY.) Salvador del Mundo, in Hamoaze, nth Dec. 1812. GENERAL MEMORANDUM. The Lords of the Council hating signified the opi- nion to the Lords Commissioners of the Admiralty, that vessels claiming protection from the licences is- sued by Mr. Allan, his Majesty's Vice Consul at Boston, or by the *S]pa««A minister in America, ought not to be exempted from British capture, and that such papers should not be respected by His Majes- ty's cruizers. In pursuance of an order from the Lords Commissioners of the Admiralty, the captains and commanders are to govern themselves accord- ingly. (Signed) 481 To the respective Captains and Commanders, &c. &c. &c. R. CALDER. The March istli, IB 1.5. n I 21 48;^ The Kewaku. March 18th, 181S. CASES DETERMINED IN THE In the case of the Hope, the High Court of Admi- ralty, confirmed the validity of Mr. Allans hcences 19th February, 1813, a decision which was not known at Halifax when this case was decided. jipvil 21, 1813. I; The Marquis De Somerueles. Second Case, upon the Petition of Mr. Black, rpHE petition was supported by the Solicitor Ge- neral, and opposed, though not strenuously, by the King's Advocate, the captors not consenting to the restitution of the property. Dr. Croke. This petition is of a different kind from what usii- ally engages the attention of the court. It prays, that certain paintings and prints, which were cap- tured on board the American vessel called the Mar- quis de Somerueles, maybe restored to the petitioner on behalf of a scientific establishment at Philadel- phia. The ground of the petition is contained in a letter annexed to it, which states : *♦ That in the So- merueles, from Italy, was taken a case be'onging to the Academy of Arts in that city, containing twenty, one paintings and fifty-two prints ; that they were presented to the -icademy by Mr. Joseph Allen Smith, who has already given most objects of die statuary, paintings, and prints which they possess; indeed this is the remnant of what he collected for the purpose of assisting in its formation. The value we know not, but in this country, and in an infant establishment, every accession is important. The Academy is now preparing an application for them, which will be handed with an accompanying letter COURT OF VICE-ADMIRALTY. from Anthony St. John Baker, late Secretary of Mr. Foster, who lias examined into the circumstances- knowing that even war does not leave science and art unprotected, and that Britons have often consi- dered themselves at peace with these, we are not without hopes of seeing them." Heaven farbid, that such an application to the ge- nerosity of Great Britain should ever be ineffectual. The same law of nations, which prescribes that all property belonging to the enemy shall be liable to confiscation, has likewise its modifications and re- laxations of that rule. The arts and sciences are admitted amongst all civilized nations, as forming an exception to the severe rights of warfare, and as en- titled to favour and protection. They are considered not as the peculiura of this or of that nation, but as the property of mankind at large, and as belonging to the common interests of the whole species. Not to mention innumerable cases of the mutual exercise of this courtesy between nations in former wars, even the present governor of France, under whose controul that country has fallen back whole centu- ries in barbarism, whilst he has trampled upon jus- tice and humanity, has attended to the claims of sci- ence. Besides other instances, there was one which came within my knowledge. A gentleman, a fellow of the royal society, was unfortunately one of the persons so unjustly detained at Paris at the com- mencement of the war. Considerable interest was exerted, through the medium of the British govern- ment, to procure his release, but without effect. Yet to an application from Sir Joseph Banks, as the pre- sident of the royal society, in favour of a member of that useful institution, Bonaparte paid immediate attention, and in the handsomest manner permitted him to return to t^land. If 2 i2 iUi r\r\ r« r\ cases were un- 483 The Marquis db SoMERUELtS. 1818. Ill I ,1' 'I I I 484 CASES DETERMINED IN THE |: The MAnQuis DE heard of, every Briton would be anxious that hib !J1!1!^I1!!;1!: country should set the honourable example; but I Aimi^zx,iux trust that every British bosom would blush with shame, if his country should be found inferior to the lawless government of France in obeying the dictates of liberality. We are at waj- in the just defence of our national rights, not to violate the charities of human nature. In thus favouring an institution of this kind, be- sides contributing to the maintenance of such a reci- procal exchange of civilities with our enemy as is consistent with the state of hostilities, we sliall per- haps at the same time promote most effectually our own best interests. There is a natural connex- ion between all the arts and sciences, as well mate- rial, as intellectual. It is impossible for a nation to improve in the polite arts without a corresponding amelioration in the practical science of human na- ture. It is a school-boy quotation, but not the less true for being trite, that Ingenuas didicisse fideliter artes Eniollit mores: nee ainit esse feros. This observation is founded in nature, for what is usually called taste is only good sense applied to the polished ornaments of life; and correct ideas in rao' rality are the same good sense directed to human actions. All absurdities, and deviations from recti- tude, are nothing more than a bad taste influencing human conduct. The public standard of morals will therefore always rise with the advancement of the polite arts. Minds, accustomed to the contem- plation of picturesque excellence, cannot fail of being disgusted with any departure from the sublimer form of moral beauty. In the iraprobal of being liave she genius in who now try, and ! academy Her educ come wh this very as a petit may aria wilds of. ponding i taste ma; hideous < (ling itsel mitting t( by factioi and avovj thers; so rosity, as ternal bei throw its( whodesp state of I doubt bu opposite indissolul tion as b^ unison th they will useful ar than a lib acromplii s that hib pie; but I lush with rior to the le dictates defence of harities of kind, be- lch a reci- lemy as is shall per- jffectually li connex- vell niate- 1 nation to esponding luman na- )t the less )r what is ied to the !as in rao- to human :om recti- ifluencing 3f morals ;ement of I contem- il of being !mer form COURT OF VICE-ADMIRALTY. 4S5 Tlie AfAnQuis nE SoMEnUKLKS. In the United States, such improvements are not improbable, or perhaps very remote, and cannot fail of being advantageous to both coiuitries. They J^^^^^^^^, have shewn themselves not incapable of producing ;veuius in these departments. The very eminent artist who now presides, with so much credit to the coun- try, and so much benefit to the students, in the royal arademy of Great Britain, owes his birth anil ear- lier education to that country. The time may shortly come when in an advanced state of the arts, to which this very institution, which is now before the court as a petitioner, may contribute its share, new Wests may arise to revive the school of Rafaelie in the wilds oi America; and when likewise, by a corres- ponding improvement in moral feeling, the public taste may be too highly cultivated to bear with such hideous deformities as the picture of a country pri- ding itself upon its liberty and independence, yet sub- mitting to be the tool of a foreign despot ; so cowed by faction that no man is bold enough to stand up and avow himself the friend of the land of his forefa- thers; so destitute of all sense of honour and gene- rosity, as to spurn, with indignity, the hand of fra- ternal benevolence repeatedly held out to it, and to throw itself into the embraces of the common enemy, who despises and insults k :— when such an improved state of society shall take place, there can be no doubt but that the two nations of brethren on the opposite shores of the Atlantic, will be united in the indissoluble bonds of friendship, as well by inclina- tion as by a common interest; they will cultivate in unison the advantages of an enlightened commerce ; they will labour togetUer in the furtherance of the useful arts; and will experience no other enmity than a liberal rivalship ia every elegant and manly arromplishment. ■ \w.\m 17*1 I :-j-; • t 486 The Marquis dx SoMBRUbMt. April 21sf, 1U13. CASES DETERMINED IN THE Not to tlisappoint the rxpectatious ^liich havr been entertained of the liberality of this conntiy and to give every encouragement to an infant so- ciety, wjiose views and objects are so laudable and beneficial, with real sensations of pleasure, and the smcerest wishes for its success and prosperity in conformity to tho law of nations, as practised hy all civdized connlries, I decree the restitution of the property which has been thus claimed. June 2d, 1813. • The Frederick Augustus. ErltrtTT'^^ ^'"^'' advocate, on the part of^ the captors ■■""" ' " " -*■ contended that this ship having been indulged under a mis take, upon proof of the fact the vessel was restored. With a protecting licence from the British govern- ment on a return voyage from Cadiz to a port in the United States, and being the avowed property of the enemy, could not be restored uidess the li- cenre were produced, or satisfactorily accounted for. The master alledges that he burnt it from an apprehension that the capturing ship was an Ame- ruan privateer : but as this was an act of his own by which he has deprived his ship of her neutral character, the court will at all events recjuire the most rigid proof in support of this declaration. Ihe solicitor general, on the other side, observed that the destruction of the licence under the cir- cumstances of the case did not deprive the ship of the protection she had originally received from it.* It was incumbent on the master to prove the fiict of us having burnt it, and this he has done to the fullest extent, not only by his own affidavit, and * See the Jongc Frederick, Classen 1, Edwards, 35/. having r: vliich have i« country, infant so- udablf and re, and ilic >sperity, in ractised by ititution o( I. he captors, » indulged ^h govern- a port in I property 2SS the H- accounted it from an an Ame- his own 3r neutral (juire the !cIaration, observed r the cir- 'le ship of from it.* e the fact me to the avit, and Tie FuRnnRicK COURT OF VICE-ADMIR/^LTY. 487 tlie deposition of one of his seamen, but by the certificate of Sir Thomas Hardy, who has candidly assisted the master in establishing the truth of his jmw ad, ibi.j. assertion, that he had the licence in his possession when the ship was boarded by the Ramiiies. Judgment. — Dr. Croke. Tliis vessel sailed upon a return voyage from Cadiz to the United States, with salt, under a li- cence from the British government. She had been boarded by Sir Thomas Hardy, in the llamiliesy and upon the production of the licence had been permitted to go on. About a mile from the Ame- rican coast, the weather being thick, a vessel came near, under American colours, and fired a shot. Taking her for an American privateer, and being so near the shore, he burned the licence. He was taken on board the privateer, and was then told that she was American, upon which he denied having any licence. The vessel however proved to be the Sir John Sherbrooke, a privateer of Nova Scotia, which immediately captured her. These facts were sworn to, and there was a certificate from Sir Thomas Hardy, which stated that she had been boarded by an officer under his command, and that her master having produced a licence re- gularly signed by Lord Sidmouth, and Viscount Chetvvynd, she was permitted to proceed. It was dated Ramiiies, off Hlock Island, 19th April, 1813. Restored on payment of the captors' expences. iff IF 5;. 488 CASES DETERMINED IN THE June 2d, 1813. l^icence to trade betwefn twoportsofthe ♦■neiny void. CUimant'd cx- pencesallowed under favoiir- «bl«' circum- fttaucei. The Expedition, Brooks. 'J^HE Solicitor-General endeavoured in tliis case poll, ral expediency, by Admiral ^av.n-, com- manding on the Jlaii/a^ station, to the claimants or the purpose of protecting them, in their accus^ tomed trade between JJoslon and iiW/y.mY. hoth ports of the enemy. He argued merely upon the policy of the measure, and the invariable indul- gence which had been shewn Jo the claimants, from a due respect to the licence, by His Majesty's cruizers, until the present capture. Judgment.— Dr. Croke. vic?!^ ^.^«f^/^^« claimed, under a licence from Z ^^' ^' ^" ^^^ United States, and Boston, and to carry provisions to East Port, and a cargo of backt" « ^""' r^' ^^'^•* ^^^'^'^«' ^'-» Whence back to Boston. The licence was dated 20th of ^at^er. Captain C?or.fo., on the Hth of Jj^nl, ene^t t^hl"^ ' '?t' ^''"^^" ^^^« P^^'^^ «^ the S V ssel r;^ ''''""'^^' '"^ ^« ''^ ^PP-- that venirce of th ^^^" Pf/^'tted to run for the con- ven.ence of the neighbouring provinces of Neto th'^crurt^irl.f 7^7' ''' " considerable time, ou :HLtZf: ^^""^"^'^ ^^^^"- '^ ^^ p-^ rpiiE protectic conduct, faith of bound t( dizcj bui that coul to prove of that register, nor any ascertain the licen ail unfaii should re point of tate befoi at Liverj. number o patches f Sweden U manuscri] telligence part of letters to of any pii caution t breach oi scription i several of COURT OF VICE-ADMIHALTY. 489 tin's cas(! rounds of ''', coin- lainiants, -ii" ace 11 s- f»/, hotli ipoii the le iiulul- its, from lajestys ce from Jetvvt'en on, and argo of thence 20th of by the April, of the 3t con- rs that 3 con- Neio ' East ved at tin)e, 3 paid I The Henry, Gardner, Master. rrillE King's advocate observed, that this was the case of an enemy's ship that had forfeited the protection of her license, by unfair and unneutral conduct. She had sailed from Liverpool under the faith of that license bearing an Atncrican flag, and bound to Boston, with a cargo of Britifih merchan- dize, but she had not on board of her a single paper that could establish her national character, or serve to prove that she was the property of any inhabitant of that country whose flag she bore. She had no register, no sea letter, no certificate of ownership, nor any document of the usual kind by which to ascertain if she were in truth the vessel intended by the license. There is reason therefore to apprehend an unfairness in the transaction which at all events should require the fullest explanation. Upon another point of still more importance, the Court must hesi- tate before restitution can pass. This ship received at Liverpool an indiscriminate bag of letters to the number of thousands, among which were public dis- patches from the American ministers in Russia and Sweden to the American government, and also several manuscript extracts from London papers, giving in- telligence of certain military arrangements on the part of the British government. The receiving letters to so great an amount without the knowledge of any public officer, who might have taken the pre- caution to inspect and examine them, is in itself a breach of that good faith which vessels of this de- scription are above all others bound to observe. By several of them it appears that it ii now the universal Junei.lBlC. Neither car- ryin)> common •'■titis, cxtructi truiii iicvfipit. peri, or tlie djj. putches ol' uii enemy umhussa* dor residing in « neutral coun- try, arc a viola- tioD of a license. fU ■V I !|,:,^ M; 1 i i j i .i ]} 11 Ii M , ■. , ' il i H ' "f! 9i <' ■ ' ; > ! l^ « •' m m "f 490 The lIiNnv. CASES DETERMINED IN THE J»nti,iau. practice to open and examine all letters at the Trai.s port Office that are sent bv cartels, and there is e;crv reason to suppose that the same regulation must exist wKh regard to all other vessels. The mastrr of (his ship has acted most negligently, (to say the Ic.st of Iws conduct,) in not having complied >vith so malnial a regulation, in the enforcing of which the suf.tv of the BntisJt government is in a great measure in^lj. catcd. The carrying of public dispatches to the enemy ,s a cause of forfeiture ; and, c\ fortiori it is a ground of condemnation to be the bearer of infor- mation so extremely noxious as that which is con- lamed in the extracts of newspapers alluded to, which the writer has taken the pains to copy for their more ready and safe conveyance. It was therefore sub- muted by the King's Advocate that, upon these two points, and particularly the latter one, the Court could not decree restitution of the ship and cargo to the claimants. ^ On the part of the claimants, the Solicitor General —It cannot be seriously contended on the part of the captors that upon either of their adopted grounds this ship and her cargo are liable to condemnation. Iheir chief, and perhaps only object in this prosecu- tion is to secure themselves against a demand of costs and damages, to which the claimants conceive they are strictly entitled upon every principle of national A^:., n '^'P '' avowedly A?nerican, sailing under the flag of the United States, and navigated by an yimerican crew ; she obtained her license of pro- tection from the highest source, and could not have procured a paper of that public importance without havmg submitted to every requisite enquiry upon the subject of her national character. She could not have passed the custom house at Liverpool in secret, her Dame, her flag, and her ownership must have L COURT OF VICE-ADMrUALTY. 491 ihe Traiis- s-Tc is e\ery must exist i the dis- rae from and the public a reason or informa- umerous, ^gravates ngthem. rtels are r exami- ablished office at for that ect, and having So that ince for license^ ived on d from ■^hich jurious of that Ited to •r's ex- 1 both r from" 3 good reason for awarding to the claimants both costs and The Henrv. damages, for the capture and detention of a rhip ^^^ which the captors have thought fit to interrupt, while in the prosecution of a voyage sanctioned by the licence and authority of the British government. Judgment. — Dr. Croke. Every enemy, who claims a protection for his pro- perty under a license, must prove that he has com- plied with the terms of it. The claimant in this case is said to have failed in two respects ; that he has not proved his property to be Atnerican or British, which was one of the conditions of the license, and the other, that he has taken on board certain letters and papers which by law he ought net to have taken. I shall consider the latter question first, because it may be conclusive. A vessel which sails under a a license is bound to the observance of certain duties. The master is not to be guilty of any practices in- jurious to the country which grants it. The effect of a license is that of neutralizing the vessel, the same inoffensive conduct is required of such a vessel as of a neutral, and it might not be unfair to apply the same rules which have been adopted in neutral cases. It is alledged that this vessel had on board an immense bag of letters, to the amount of some thousands, and that amongst them were contained information respecting various matters in England, which were of an improper nature, and also some dispatches from the ambassador of the United States in Russia to his own government. I know of no re- striction to prevent neutral or licensed vessels from carrying letters. There is indeed a regulation re- specting cartels, which is well known, and which appears in the correspondence produced, that no ■iiiu i M ' 1. ■ i^MilHi 1 1 The HiNny, CASES DETERMINED IN THE •'we 2, 1813. ;tl ■ '4 li letter, or newspapers can be taken on board without a previous exarainination. But those vessels are of a public nature, and under the immediate eve of government. The masters of licensed vessel, are n" required to submit their papers to the inspection of a oftce that I know of. Nor is there any limitation a to numbers ; a master may take letters to any a„,„„' wubout any violation of hi, duty. It i, true that h takes them under a responsibility. If thev are of an improper nature he must be answerable fir the con sequences. The greater part of these letters are "f ^ .nnocent k„,d, a mere mercantile correspondence Whatever may be said from theory of the impro; hZ A '" *""' "' "^'•' '"f""- ">«■■« are num. bers of ^^,„-,«« residiug i„ England by pe„„". ».on, there are many British merchant, who h" e * d and st,ll have varinus connections in theU.Z Staes, and who have many affairs to transact thrl There surely can be nothing contrary to duty ?„" «omm„„,ea..„„, b„„,,„ p,„„„^ .„ ^^^^ " Jy the two countries respectively tio^"°it"r^' '"™ '''™'''' "' = <"«■"»' <'«crip. tion. It con ains extracts from newspaper, relalino- to various military operation, of the country and couTr.^r, I 1. " *" """P""" «leW™cntaI to the country which has conferred them, if it ha, treache 'ously covered hostile transaction, under thi mal o enouIT A """■" '""'•y^^ ■■' '"'""'y injurious enough to area, Britain, and. ben.ficfal i h I without !ls are of e eye of Js are not -tion of a inj other itation as y amount e that he are of an the con- rs are of ondence. B impro* and the ire num- perrnis- ho have J United it there, duty in itions in descrfp- relating^ rj, and ment of the pri- to the reache- lask of lefit of ligence vessel, urious to her COURT OF VICE-ADMIRALTY. enemy. It contains the result of experiments as to the ( ffect of guns of different weights of metal, by which it was ascertained that the heavy twenty-four pounders, used by the United States, take effect at a much greater distance than the light guns of the same calibre used in the British navy. It contains the names of the regiments embarking for America, and the state of the small vessels just sailing for the river St. Lawrence. This information is malignant enough in its tendency, and if it had been procured by spies, or in any clandestine manner, I should have held it sufficient to have worked the condemnation of this vessel. But it consists merely of extracts from newspapers, the account of public matters, uni- versally known in the ports where they took place, from thence circulated in English prints through the whole country, and wherever those papers are dif- fused, which may be said to be nearly^all over the world. So many opportunities would present them- selves of transmitting them to America, through agents of government and a thousand other channels, that it would be impossible to prevent their free transmission. I cannot think that the communica- tion of such very public intelligence can be conijidered as of an highly deleterious nature, or that it would subject this vessel to confiscation. The other part of the contents of the bag, the dispatches of the American ambassador at Peters- burgh, appear to me to come precisely within the decision in the Caroline Doah* In that case, dis- patches were going from the French minister in America to the departments of government in France. The grounds of the decision are there fully consi- dered, and Vi^hetfaer these dispatches be supposed to * 6 Rob. 4^1. 495 The HsNRV. /une 2, 1W3. ill I: :•! iil 1 ■ 1 .1 4 ■ i 1 u .iitii 496 CASES DETERMINED IN THE The HgNRr June i, 1813. ill be proceeding from Russia, merely through the iu. tervention of a 5n7i5/i port, or immediately from England, it does not appear to vary the case. Having disposed of the first ground of objection I proceed now to the other, the want of proof of property. The license required it either to be British or American. But it is not enough merely to satisfy the conditions of the license. A party an- pearing as a claimant must shew that the property belongs to him. Now it is scarcely possible to con- ceive a vessel so imperfectly documented as the pre- sent. There is not one paper whatever which shews the ownership. If we enquire into the history of the vessel from the master, we are informed that she was originally Atnerican, that she was seized at Naples and sequestered, by which I understand, condemned' and sold. She is said to have been there purchased jointly by the agent of Wells the claimant, and of a Mr. Robertson; that she then went to England in the year 1811, where Mt. Robertson's agent transferred his share to Wells, who then became possessed of the vhoie. This may be true, but there is not one single document to prove it, no sentence of condemnation, no bill of sale, no register, no passport. There is indeed a certificate of the American consul, that the register, sea letter, and certificate of purchase were deposited in his office on the 12th of November 1811 but there are no copies of them, and the consul neither refers to their contents nor says a word of the ownership. By the condemnation, which the master states, she was in the hands of the enemy by admis- sion, and there should be proof of a transfer from him This may be a fair case, but it would be de- parting from every rule of Courts of Admiralty, to restore under such a total defect of documents, and I •hall permit the parties to bring further proof of manner, use may mediate scarcely as a fair require dtance. The < fairness c by consei Foi Foi Ji AS thi ■^ Anh give it tl scrupuloi j COURT OF VICE-ADMIRALTY. their property. There is another observation which remains to be made. This vessel was to clear out on or before the 28th of February. The clearance is dated on the 3d of February, yet the vessel did not sail till the 19th of March. Neither the master in his claim, nor the counsel have attempted to give any explanation of this extraordinary delay of six weeks. Unless it can be accounted for in a satisfactory manner, it excites a suspicion that some fraudulent use may have been made of the license in the inter- mediate time ; and such a protracted departure can scarcely be considered, without being accounted for, as a fair compliance with the terms of the license. I require the parties therefore to explain this circum- stance. Farther Proof. The captors being afterwards satisfied of the fairness of the case, the ship and cargo were restored by consent; on the payment of captors* costs. Tlie Hehiiy. Junes, 1813. ■lliMi {■■ : m The Orion, Jubin, Master. For the Captors — The King's Advocate. For the Claimant — The Solicitor General. Judgment^— Dr. Croke. A S this is the first case which has arisen on the ^ American blockades, I felt it to be my duty to give it the fullest consideration. I have examined scrupulously all its circumstances^ I have weighed June SOth, 1813. Discouion of Orders in Coun- cil. The effect of licenses to be deduced from the intentions of government. I ' 498 CASES DETERMINIvD IN THE Tlip OnroK. June 3()lli, 1813. attentively the arguments which have been advanced by the counsel on both sides ; [ have searched out, and have carefully applied to the present case, all the former decisions of the higher Courts which 1 conceived to have any bearing; or relation to it; and I have now to make known to the suitors in this Court, the result of my enquiries. The facls in this case arc few and undisputed. The vessel, having on board a cargo of flour and Indian meal, sailed from New York, on the I5tli Mmj 1813^ bound to Lisbon under a license from the British Secretary of State, bearing date upon the llth September 1812, and which was comprized in these words. To all commanders of II. M. ships of xvar and pri- vateers, and all others -whom it may concern^ Greeting : — I, the undersigned, one of His Majesty's principal Secretaries of State, in pursuance of the authority given to me by His Majesty by order of council, under and by virtue of powers given to His Majesty by an act passed in the forty-eighth year of His Majesty's reign, intitled, " An act to permit goods secured in warehouses in the prort o^ lA)ndon,io be removed to the outports for exportation to any port of Europe, for empowering His Majesty to direct that licenses, which His Majesty is authorised to make under his sign manual, may be granted by one of the principal secretaries of state, and for enabling His Majesty io permit the exportation of goods in vessels of less burthen than are now allowed by law, during the present hostilities, and until one month after signature of the preliminary articles of peace." And in pursuance of aa order in Council hereunto annexed, I do herd in the sa Co and unarmed and bear a vessel I or to the nexed to the port of Amer without may ex is States of ship afoi iiihabitai said prof said vess( and retu blockade of the ve vessel shi the vesse This 1 from the Septembi jesty's rei It is { good itse plied witi and carg standing of New ] There The first ! ! ll idisputcd, flour and the ir)th ; from the upon the iprized in and pri- cern. principal authoritj- council, I Majesty r of His nit j^oods 071, to be any port to direct )rised to d by one enabling' goods in 1 by law, nth after " And in inexed^ 1 COURT OF VICE-ADMIRALTY. do hereby grant this license for the purposes set forth in the said order in council, to Cropptr, Benson, and Co and others ; and do hereby permit a vessel being unarmed, j.nd not less than one huiKJred tons burlhen, and beariny^ anv flasr, except that of F»Y//?c- to France or to the subjects thereof, or to the subjects of any territory, town or place an- nexed to, or formin^r a part of France, to import into the port of Lisbon, from any port of the United States of America, a cargo of rice, grain, meal, or flour, without molestation on account of any hostilities that may exist between llis Majesty and the said United States oi America, notwithstanding (he said cargo and ship aforesaid may be the property of any citizen or inhabitant of the said States, or to whomsoever the said property may belong, and that the master of the said vessel shall be permitted to receive his freight, and return with his vessel and crew to any port not blockaded, upon condition that the name and tonnage of the vessel, and the name of the master of the said vessel shall be indorsed on this license at the time of the vessel's clearance from her port of landing. This license to remain in force for inne montlis from the date hereof. Given at Whitehall iha 11th September 1813 in the fiftjr-second year of His Ma- jesty's reign. SIDMOUTH. It is admitted by the captors that the license is good itself, and that the terms of it have been com- plied with, but it is alledged by tliem that the vessel and cargo are still liable to condemnation, notwith- standing the license, for having broken the blockade of JVew York. There are two points therefore for consideration. The tirst is a question of fact, whether Neuo York ' ' ' ' " ■—■■■ !■■■ !■ M ■ J»nr iiOili, 'III if! i ; 'JiliH 1 ' .500 Thf OmoH, June SOlh, 1813. tHt \t 1 .( CASES DETERMINED IN THE was blockaded at the time she sailed from thence. The second is a question of law, whether, supposing the blockade to be established, the license can pro- tect the consequences of coming out of that port during its continuance. The master has sworn roundly " that he had no knowledge of the blockade." But there is full proof that the notification of it, which was made by Lord Castlereagh, by the authority of the Prince Regent upon the 20th March, was at that time known at New York. It is contained at full length in the Evening Post, a newspaper published in that city, of the 6th May, and consequently nine days before the vessel sailed ; and it is morally impossible that inform- ation, of so important a nature to the mercantile inhabitants, should not have been universally inter- communicated amongst them. It has been argued by the captors that this notifi- cation alone establishes a blockade. That being a public act, and proceeding from so high an autho- rity, nothing more is required, and that it would constitute to all intents and purposes a blockade even if there were not a single vessel off the port ; that the cases from which the contrary might be inferred were cases of notification from commanders in chief, and not by the public authority of the sovereign, and that in the blockade of the French coast it was never required that there should be any vessels stationed off the ports ; that even if it were necessary to prove the fact of the ports being actually blocked by ships of war, the capture of this and many other vessels are sufficient evidence of it. It has always been held by the British Courts of Prize, that to constitute a blockade, two things were required,--that the ports in question should be in- vested by a force adequate to the purpose of prevent- ing egri capture, parties v actual ii this stat( decided unsuppo establish ference \ vate not merely, / the brea h. notifi under th act imm( manders such poi formal a ments is viduals. ment of ; country > as a presi duty of g jects : bi viduals a blockade be to thei cation it the fact < notificatii What coasts by forms no this subj measure f ' . COURT OF VICE-ADMIRALTY. ing egress and ingress without imminent danger of capture, and that notice should be given of it to all the parties who were to be legally affected by it. The actual investment is absolutely essential to constitute this state, and as early as the West India cases it was decided by the Court of Appeals, " that a declaration unsupported by the fact will not be sufficient to establish a blockade." In this respect there is no dif- ference whatever between a public, and the most pri- vate notification. The object of both is the same, merely, to inform the 'party who is to be charged with the breach of the blockade, that a blockade exists. A notification given by a con ander is as much under the authority of the sovereign, as if it were an act immediately proceeding from him, because com- manders derive from him the power of blockading such ports as they may judge proper. The most formal and diplomatic notification between govern- ments is only meant for the information of indi- viduals. Public notifications, made to the govern- ment of a country, will affect the inhabitants of that country with the knowledge of it after a certain time, as a presumption juris et de jure, because it is the duty of governments to communicate to all their sub- jects : but whenever it can be proved that any indi- viduals are acquainted with the existence of the blockade by any other means, the consequences will be to them the same. But under all modes of notifi- cation it is absolutely necessary that there should be the fact of an actual investment, without which no notification is effectual. What has been called the blockade of the French coasts by the well known order of the 26th of ApriU forms no exception to the principles maintained upon this subject by the British nation. That was a measure perfectly different from a blockade. It did 501 The Omoy. j ^ 1 ! 7uii« SOth, 1813. m I ' Mi ' I ■ i-ll! 'k '■i 1 J A 502 CASES DETERMINED IN THE The Orton, lune oOili, not profess to be a blockade, but on the other Imnd the words of the order were, " that those ports should be subject to he same restrictions as if the same were actually blockaded by Ilis Majesty's naval forces in the most strict and rigorous manner." The word block- ade was introduced not as a definition of the nua- sure itself but bj way of explanation of the mode in which it was to be executed; in the manner of an actual blockade. No investment was even supposed to take place, because it was impossible that there could be an investment to the whole extent of the coast affected by the order. It was not therefore a blockade, but it was a retaliatory measure to counter- act the effects of an unjust and unlawful attempt to ruin this country by cutting off its resources. It was not directed against particular ports, but against the enemy's trade universally. It was a total prohibition of all commerce with the enemy, as he had prohi- bited all commerce with Great Britain, and it would bave been ineffectual and futile, if it had not compre- hended all the dominions of Fraficc, and if it had been limited within the legal boundaries of a block- ade. As none of the rules of law relating to blockades, were therefore applicable to those orders which militated against their design, so no inference whatever can be drawn from thence, that the laws of blockade, before admitted in the British courts, have been in any manner altered or deviated from. There is no necessity therefore to imagine, with the counsel for the claimant, that those orders have been abandoned by the British government either in fact or in principle. ^They never have been in fact annulled. The supposed repeal was merely provi- sional, and the conditions not having been complied with by the American government, they are still in torce, as has been decided in this Court in some ii Li mi, mi COURT or VICE-ADMIRALTY. dU3 June ,'?Oili, 1013. recent cases.* They can never be abandoned in TheOmoN principle till this proposition is admitted to be true, that " it is the duty of a nation to submit to the annihilation of its commerce and resources, when it is attempted by its enemy with a view to its final sub- jugation and destruction, without an eflfort of strug- gle or resistance, because that resistance may be some inconvenience to a third country." Our enemies, both open and in disj»;uis(', naturally are vehement in their outcries against the orders in council, because they have proved too successful in defeating their malevolent designs; but, as long as the right of self- defence shall continue to be the first law of nature and of nations, so long will those retaliating and de- fensive measures rest upon the solid foundation of eternal truth and justice. It is necessary then to establish in this case, besides a notification brought home to the knowledge of the parties, which has been sufficiently proved, that a blockade de facto existed. It is indeed to be sup- posed from the notification itself, that orders would be given to carry the intended blockade into efi*ect. Yet this is not so conclusive as to carry with it a presumption that it has been actually done. It was argued by the captors' counsel, that even if the high officer, who has the supreme command on this side the Atlantic, should refuse to execute the order, that the Court would be bound to execute it, and to enforce the law. But this is not a true state of the case. If it were possible that an officer should be guilty of a great breach in his duty in not observing orders sent to him by government, still, though he might be per- sonally rsponsible for the neglect, yet that would not supply the want of the fact that a real blockade had * The Marquis de Samerueks, the George, aud the Phoebe. m i ■! ■'ilifii'l 1 i i ^'1 ' 7 1 ( ( 1 A A04 The 0«ioM CASES DETERMIXED IN THE June 30lh, 1B18. "^ taken place. It has been held in the High Court of ft Admiralty,* that even where there was an actual in- vestment, if any of the blockading ships have not en- forced it, that the blockade is so far "virtually relaxed " There is no evidence that the port of Ncxo York has over yet been in a state of blockade. It is not known as matter of notoriety, or from the capture of vessels. There is no special evidence of it afforded by this case. No vessels were seen off the port. The cap- ture was made in the latitude of 40 degrees, and in the longitude of 70 degrees and 20 minutes, by the prize-master's affidavit, at the distance therefore of nearly one hundred and fifty miles from New York. There is no circumstance therefore to lead us to a conclusion that the port of New York was in a s^ate of blockade. Where the existence of a blockade has been generally known and continued for some time and by public notification, it is presumed prima facie to continue till it is revoked.-In such case when a blockade has really existed, it has been held to be incumbent on the party alledging the relaxation to prove It. But in the present instance where it is not known that any blockade has ever commenced, I think It fair that the party who is to have the benefit of the blockade should establish it by evidence. If the case therefore depends upon that fact, I should direct the captors to bring further proof of it, and should allow the claimants at the same time to bring such other evidence as they may judge proper upon the point. '^ This however will be unnecessary if it should be tound that, notwithstanding a blockade, this ship and cargo were protected by the license, which brings me to the consideration of the second point in the case. This license is dated on the ilth Sep^ • Jqffrau Maria, Rob. 111. 135. I It COURT OF VICE-ADMIRALTY. tember 1812, and the question is, whether it is an- nulled by the subsequent order for blockading the port of New Yorkj as far as that or other blockaded |)orts are concerned ; or in other words, whether under a license to import goods from any port in the United States, they can be exported from a blockaded port in that country. I have examined all the cases to be found which at all relate to this question. A recent case, that of the Byficldj Forster,* was the case of a vessel which was said to have hud a license granted to certain British merchants^ permitting a vessel to proceed from ««?/ port in the Baltic to any port in the United Kingdom. The vessel went into Copenhagen, then blockaded, and came out with her cargo with which she was sailing to Liverpool, when she was captured It was laid down most strongly by Sir William Scott, that " a license expressed in ^enei al terms^ to authorize a ship to sail from any port with a cargo, will not authorize her to sail from a blockaded port with a cargo taken in there ; to exempt a blockaded port from the restrictions inci- dent to a state of blockade^ it must be specialli/ designated with such an exemption in the licenae ; otherwise a blockaded port shall be taken as an exemption to the general description in the license.^' Nothing can be laid down more forcibly and gene- rally than this doctrine. Yet it seems that there may be exceptions to it. In the Hoffnung, Berens,-\ with- out any such express exemption in the license, where it had been granted on the same day when the notifi- cation stated the blockade to commence^ the learned judge ** laid all question of blockade out of the case^ for he thought himself bound to pres'ime that it was intended the parties should have the full benefit of I aoft Tlif Orion, June :l()tli. lUl.i. 1.1 ' I .1) l%t Edwards, U8. t Rob. II. 162. CASES DETERMINED IN THE importing thearticles without molestation from a blotlc ade, which could not be unknown to the i^^reat per! sonage under whose authority the license was issued." Another ground of exception was taken and ad- mitted in the same case, for the judge concluded that since " the blockade was not considered as J ground for withholding these licenses, he was led to suppose, that it was not intended to have the effect of suspending such as had already been granted." In the case first cited, where the general doctrine was laid down so universally, but which must be understood with some little reference to the particu- lar case in which it was stated, it was said that " as the vessel was lying at Christiansand, an open port at the time when the license bore date, and there was then no intention manifested of going to Copenhagen, the license could not be of a nature to prohibit the purchase of a cargo there, a transaction which was not in contemplation when the application was made," still referring for an explanation of the license to the intention of government. It may then from these three instances be fairly inferred as the judicial opi- nion of that great man, that notwithstanding there IS no express provision in a license or a blockading order to that effect, yet wherever it appears to have been the intention of His Majesty, or of those who exercise his authority, that the permission given by a license should not be suspended by an order of block- ade, that it is not affected by the blockades. But before I consider the application of these prin- ciples to the present case it must be observed, that there is in limine a very material distinction between them. All those cases were of licenses granted to British subjects or neutrals, and the blockades were of ports belonging to third nations our enemies. This IS the case of a license granted to the eneipy, i i!' COURT OF VICE-ADMIRALTY. and the blockade is of bis own ports. Tbesc are such material circumstances that the other cases cannot in a.ny manner be considered as directly applicable to the present. For the truth is, that a blockade is not a measure which legalli/ afFects the enemy at all ; it operates in point of law, only upon neutrals, upon them it has a real lejral effect ; it gives new rights to the block- aders — Without it neutrals might trade in safety to the port. It is the blockade alone which creates the right of capturing their vessels. But the vessels and the other property of the enemy would be equally liable to be captured and condemned, although a single blockade should never be established. It is indeed a disposal of naval forces which renders the capture of his property more easy to the blockading ships, and which distresses him by excluding neu- trals, but this is all. As to the enemy's property, the blockaders acquire no new right by it. Before a blockade is established, they can seize and confiscate thij on»-my's property, whereever they find it, and during a blockade they can do no more. It affects Hl^rt the enemy de facto, and not de jure. That a blOfsliaclti affects mcely neutrals, is evident from the form of notification. This is conceived always rieatfy: In the same words. It is signified to the mlnistttrfe of neutral powers^ and it informs them 'f *hiit.-;nifeasures will be adopted which are autho- fisdd^by the law of nations, and the respective treaties between His Majesty and the different neutral fiWu&issS. " The instructions to the blockading yes- seisin >by which the blockade is established, are, to tPtti^'-ftll neutral vessels destined to or coming '' out of th« respective ports.". No notification is made to th6 enemy, no instructions are given relative to the caftare of his property, because it requires no spe- 50; The Orion. June SOth. 1813. : :■ I nr- ill 508 The Orion CASES DETERMINED IN THE June 30ih, 1S13. cial d.rcctions. Since then no order, are given to the blockaders respecting his property, it is left pre- cisely as ,t was before the blockade; that is, liable to be captured generally, unless where it is particu- larly protected by orders from the British govern ment, or other peculiar circumstances. Since the orders to the blockading ships specify, and relate only to neutral vessels, they cannot authorise the can ture of mm^', vessels though protected by a license which are not neutral vessels; although, to ascertain their general rights and duties, they have sometimes been considered in that light, in the way of analoffv and of a partial similitude, which does not hold ffood in every respect, but which might be estimated from the nature and object of the special protection so granted, and of the document by which it is con- ferred. Since a blockade creates no right of cap- turing enemy's property which did not before exist; If this general right of capturing his property has been suspended by a license, I do not see how it can be revived or renewed by a blockade, or how the cruisers can acquire from the blockade a right to capture the enemy's property, in a case where that right had been superseded by the act of his own government. Neither does the object of the present blockade at all interfere with that of the license, but on the con- trary, they are independent of each other, and both consistent That of a blockade is to distress the trade of the enemy, but the design of the license is not to assist the trade of the enemy, or for the ac- commodation of any of the merchants of that coun- try, but to relieve our own wants, and to promote an important and interesting service. If it was an oh- ject with the British goyernment to victual our troops m Spain, that object is not affected by the blockade. £ e given to is left pre- t is, liable is particu- s/i govern- Since the and relate se the cap. ' a license, ascertain sometimes ' analogy, hold good ated from tection so it is con* t of cap- are exist; perty has ow it can how the right to here that his own tckade at the con- md both tress the icense is r the ac- at couH' >mote an s an ob- ir troops ockade. COURT OF VICE-ADMIRALTY. It is equally necessary that the soldiers should be fed whether New York is blockaded or not. Adopting from British and neutral cases the prin- ciple, that the effect of licenses is to be deduced from the intentions of the British government, as far as it can be ascertained from circumstances, let us endea- vour to discover what must have been its intention with respect to these licenses. I have just observed that the object of them was for the benefit of the British military service. The armies employed in the cause of liberty, were starving in Spain. Most of the ports of Europe were shut against British vessels. It was necessary to have recourse to the United States, as long as those necessities continued which these licenses were intended to remedy ; it must be supposed to be the intention of government that the supply should be continued. The existence of these licenses themselves, unexpired, and unre- voked, is prima facie presumptive evidence that those articles are still wanted, till that presumption is over- ruled by a declaration to the contrary. In the next place, though a license is general and extends to any port in America, yet in fact the blockaded ports of the Chesapeake, and other southern ports oi America, are the only ports from which flour and corn can be exported. The northern countries of the United States do not grow enough for their own consump- tion, and are supplied from the southern ports. If government wishes therefore to be supplied at all, it is only from the blockaded ports that it can receive the supply. Some evidence of their intention may be deduced from the form of the license. — It says that " these articles may be imported from any port of the United States without molestation on account of ani/ hostili- ties which may exist betweea His Majesty and the 6O9 The Ohion. 1813. :ii 11 '. I Jii II i 1 i ■ I> ■ 510 Tlie Orion June 30th, 1813. CASES DETERMINED LV THE _ United States of ^.v/mc«." It might not be over- straining these expressions to interpret the words " amj hostilities" to m.^an " notwithstanding any mode of hostilities which Great Britain may think proper to employ, whether by blockade or otherwise," It is true that this blockade was not established till many months after the date of the license, but it was not improbably in the contemplation of the British go- verment. To carry on a war against that country by blockading their ports has always been a general and favorite idea. Something of the consideration of blockade must have been present to the mind of those who drew up this order in council, because it is thus mentioned.—- The master of the said vessel shall be permitted to receive his freight and return' with his vessel and crew io any port not hlockadecir li seems to have been understood and intended, that the license could and should protect the master against breaking a blockade, or why else should it have been thought necessary to prohibit his return to a blockaded port ? Understanding the licenses then to have been a protection from the penalties of block- ade breaking, though they do not forbid coming out of and exporting the articles described from a block- aded port, it is a fair conclusion then that this was not intended to be prohibited. The reason of the distinction, as it is to be deduced from the present existent circumstances, and which were probably toi.;sccij when the license was granted, on the grounds which I have j ust stated, is evident. It was only by coming out of a blockaded port that the license could be executed, and its object accomplished, because the provisions to be imported to Lisbon could only tliere be procured. It may reasonably be doubted, whether by a license ot this nature a kind of vested interest is not con- COURT OF VICE-ADMIRALTY. lerrcd upon the grantee^ of which he cannot be de- prived capriciously, at the mere will of the granting nation, or at least, whether he can be dispossessed of it without an express declaration of the government by which it was granted. Since it is a privilege which is to protect the property of the enemy, and for the benefit of the countrij which grants it, not only the interest, but the good faith and honour of the coun- try are implicated and pledged to respect tlicm. They ought not to be revoked without full and timely no- tice. Adverse considerations ought not to be pressed too rigorously against them, but they should be sup- ported by the most liberal interpretation. In case of doubt, the balance should incline in their favour ; it k a contract for the benefit of one party in which the British government says, in fact " if you will import provisions to the army in Portugal we will protect your vessels from capture" — when the j4me' ricans are performing their part of the contract, it would be a trap to turn round upon them and tell them that the protection is withdrawn, without any previous notice having been explicitly given to that effect. In point of prudence by allowing the validity of these licenses little mischief can be done. As they were limited to nine months they have now nearly all expired, since it is understood that none have been issued since the beginning of October. The object of the blockade will not be defeated by allowing them. The departure of half a dozen flour ships will not materially relieve the distressed commerce of the United States, but the intercepting of them may be injurious to the 5ri7/.s/i service in the Peninsula, and may be considered as not very creditable to the liberality and good faith of Great Britain. By re- storing this property therefore, I conceive that this M 511 The Obion. June 30lli, 1813. f ill 't!!| il ' ! HI 513 CASES DETERMINED IN THE The Omotf. June SOth, 1813. Court will but maintain the justice, the honour, and policy of the country. Such is the view which I have been enabled to take of this subject. It were to be wished that pub- lic documents upon which the important interests of many individuals depend, should be clear and definite in their language, that nothing should be left to sup- position, and that either in the license it should have been explicitly stated, that the exportation might, or might not, be made to a blockaded port, or that in the order for the block Je, it should have been de- clared whether it was to extend to licensed vessels. If this had been done we should not have been driven to the necessity of divining meanings and intentions. Par- ties, including captors, and claimants, commanders, and merchants, would not be placed in a state of doubt and anxiety, and this Court would be relieved from the painful duty, too often imposed upon it, of making its way amongst various difficulties, and opposite obliga- tions, frequently with no other guide than proba- bility and conjecture. If the parties are not satis- fied with the decision of this Court, it is competent to them to apply to the superior tribunal, where the instructions and objects of His Majesty's govern- ment are known d priori, and not left to be deter* mined hy hazard and distant reasoning. COURT OF VICE-ADMIRALTY. The Cossack. Judgment— Dr. Croke. 'T^HE question to whom this vessel was to be con- demned, was reserved upon a letter which had been received from the Deputy Marshal at New Brunswick, complaining of the conduct of the cap- tor, and reprrting " that the prize had been removed from that por. by Captain Gordon, or Captain God- fretj, of the royal navy, without any sanction on the part of the marshal, or any communication of their intention respecting the vessel." The Court therefore suspended this part of the decree, and di- rected Captain Godfreij, the commander of the Emu- lous, and the captor of the brig, to answer the charges thus made against him. He brought in an affidavit, in which he stated that " he had captured the Cossack, an American privateer, and carried her to St. John's in New Brunswick;" he states the steps he took for her safety before he went to sea again, and "that on his return he found she had been taken from the place he left her in, that she had her sails bent, and was at anchor in the stream, ready for sea. He made enquiry as to the reason, and was informed that the merchants of St. John's, having received in- telligence that a privateer was off their harbour, had thought proper to fit the prize for sea. There was no person on board when he came in, and the vessel was in a situation of danger. He found on enquiry that one of the pilots had the keys of the vessel, which he delivered to the deponent, and recommended him to send some persons to take charge of the vessel, which he did. and the vessel remained in his pog= *2l 513 JuJie 30th, 1U13. Prize forfeited lor the niisuon< duct of the cap- turs ill tukiiig it out of the cus* tiid^ of ttic Disr< sh 1 m I I Mi ■I' I 5U' CASES DETERMINI.]) IN TFIR The CosMCK. session for a week or ten (lavs witliout any notice June .'iHili, f ■!H being given to liim tliat she was in custody either of the marshal or the custom hoii c ; nor did eithor of those officers give notice to the deponent, th:it they claimed to hold the custody of the vessel ; that being about to sail for Halijax, he directed his (,iii- cer to get under way with him a id proceed to Hali- fax, where he brought the voisel ; that he could not believe that an officer of this Court would pre- sume to make any use of a prize put under his care, and if the deponcjut can bi^ considered as having taken the prize out of the ( nstody of any person, it must be the merchants of Saint Johns, who had got possession of her, and fitted her with an intention of sending her out to cruize." An answer has been given to this affidavit by tlio deputy marshal Mr. lluzcn. He states various stops taken when the vessel was brought in, not material to the present question, and he then proceeds to state, that "on the 4th or 5th of J%y, the said schooner remaining at the wharf, a message was sent from Lieutenant Colonel Robcrlon commanding the gar- rison, and from the principal merchants at St. John's, requesting permission to equip the Cossack to repel an enemy's privateer, that the deponent went to Colonel Rohcrtons quarters where he stated dis- tinctly his inability to grant such permission; and that if the Cossack were equipped and removed it would be at the risk of the merchants, and he de- clined going to a meeting lest his presence should be construed into a consent. That in the morning he found the schooner had been removed, and that a petty officer and some seamen of the Ejnulous amongst others, were equipping her for sea; that the deponent was informed that Mr. Reid was to com- mand her; and Ihat Colonel Roherton would put on my notice V ciUicr of ilid either iient, lli;it sel ; lliat (1 his oiH- \ to lltili- he could oil Id pre- r Iiis care, IS having: |)crson, it n had got Lentiuu of vit by tlic ions stops latcrial to s to state, schooner sent from the gar- >^ Johns, ■ to repel went to tated dis- lion ; and Mnoved it nd he de- should be )rning he id that a Emulous ; that the I to com- Id put on June .loth, lais. COURT OF VICE-ADMIRALTY. 51^ board a party of the eighth regiment; and as the The Co.mc. principal merchants had agreed, to the satisfaction of Mr. Black, the prize a^ent to tlic Emulous, to gua- rantee the full value of the vessel, the deponent, con- sidering the public emergency, did not deem it to be his duty to oppose the employment of the schooner for a temporary purpose; that the same day the Battler and another armed vessel came off the port, and the intention of sending the Cossack to sea was abandoned ; that at this time he went to the custom house, and told the collector and comptroller that an the occasion for equipping the Cossack had passed, she ought to be forthwith ordered back to the wharf; that at this time she was moored in the stream just under the windows of the marshal's office, and within hail of the King's ships, where he conceived her to be safe, and expected to have her immediately re- turned to the wharf; that the schooner Bird, de- tained by the Emulous, and in his custody, had rode in safety near the same place ; that on the 7th of Ma^/ observing with surprize that the Cossack was not returned to the wharf, and apprehending that some mistake might arise respecting her, if the moni- tion were removed from her mast at the time and in the hurry of equipment, he went off in the afternooa with two other persons, and having satisfied himself as to this particular, and as to her safety, he did not think proper to do any thing farther respecting her at that time, particularly as Captain Gordon the com- manding naval officer had recently remarked to him upon the great expense attending admiralty proceed- ings, and that he wished him to ^How the captors to perform the necessary labour of rftnoval, unloading, &c. That one morning in the week commencing the 9th and ending the 15th of May, in which week the Cossack was removed from the port by Captain G'oir .1 K .'4 ■ ''Ifli 516 CASES DETERMINED IN THE June 30th, 1819. Ti.e Co„/c« , frei/, he and Captain Gordon called at the office of the deponent^ and requested permission to unload and dispose of the white oak staves on board the schooner Bird, as they would sell well ; that the de- ponent answered he could not allow of such transaction without the order of the Court; that in answer to a question put, whether the Columbia were libelled, he read from his docket a list of vessels recently taken into custody, in which the Cossack was included, and he stated that a copy of the monition might be seen upon the mainmast, and that Captain Gordon observed to Captain Godfrey, that as he was going to Halifax he had better take steps to expedite the proceedings. " This affidavit is accompanied with a letter from Cap- tain Gordon, in which he says, that " he remembers the conversation in the marshal's office, though he cannot recollect that the Cossack was particularly mentioned ; that it was generally understood that the Cossack was under a libel, and he has usually found the marshals tenacious as to the authority of the Court of Vice- Admiralty." There is likewise an- other letter from Colonel Robertson, respecting the application for the Cossack to be fitted out against the privateers, in which he states, that " the marshal pointed out to him, that he should not oppose what appeared to him for the good of the service, but se- curity must be given for the vessel; and in conse- quence the principal merchants gave security; but from the squadron's returning into port, a stop was put to any further proceedings, and she was deli- vered up to the captors." Such is the statement of facts on both sides re- specting this complaint of the deputy marshal against Captain Godfrey, which I have read at length from their affidavits. Prizes made at sea are not under the absolute dis* posal ol ter in tl but the volved only qu and frie upon gc ties, but many re inconver they wei took the! practices rally con and govc and com rules im municipa penalty f according prizes ar the captc into the ( of any of against tl demned ti To res cars of tl whom it is not an happen t( against I: whose ofl to his au nity. If case, unit dis<^ COURT OF VICK-ADMIRALTY. posal of the captors. They form an important chap- ter in the law of nations, and not only the interests, but the honour of every country arc materially in- volved in them: There may arise upon them not only questions which affect the property of neutral and friendly nations, and which may depend not only upon general rights bul upon the stipulations of trea- ties, but even with respect to the enemy, there are many restrictions to be observed. To prevent the inconveniences and abuses which might take place if they were left entirely under the disposal (*f those who took them, and to restrain the irregular and piratical practices which might be apprehended ; prizes are gene- rally considered as the property of the nation at large, and governments have given the captors only a limited, and conditional interest in them, subject to all the rules imposed by the law of nations, and their own municipal regulations. To enact laws without any penalty for the breach of them would be nugatory ; accordingly, by the old established law of admiralty, prizes are forfeited to the King for misconduct in the captors. Of late this rule has been introduced into the prize acts, that " upon proof of the breach of any of His Majesty's instructions, or of any offence against the law of nations, the prize shall be con- demned to His Majesty's use." To rescue a vessel out of the custody of the offi- cers of the Court of Admiralty, and other officers to whom it by law belongs, is a very high offence. It is not an offence against the persons merely who happen to occupy these places, but the offence is against His Majesty himself, whose Court it is, and whose officers they are. It is a rebellious resistance to his authority, and a contempt of his royal dig- nity. If such a rescue has been committal in this case, unless a legal excuse can be fouud 1^ it, there Sir Tlia CossAci. June 30th, 1 I' i k 518 CASES DETERMINED IN THE Tlio CatiACK. Jun* 3Qlh, 1B19. [ ;»( •J. m ii no doubt but that the partj is subject to the visi- tation of the law. 1 shall enquire therefore, first, whether this vessel was in the custody of the marshal. Secondly, whether it was taken away without his consent. Thirdly, whether any justification has been proved for so doing. The first and second points are scarcely contended, and are proved by the return of the monition now in Court, by which it appears that the marshal served the monition and took possession of the vessel in the usual way, and she was therefore under his legal custody, and by the admission of the parties, who do not alledge any authority whatever from the marshal for the removal from the port of St. John's in New Brunswick to Halifax. The substance of the offence then is perfectly es- tablished, and the only question for consideration is, whether Captain Godfrey has set up a satisfactory justification. The excuse which he pleads seems to relate io three points; first, that he was ignorant that the vessel was in the marshal's custody; secondly, that the marshal had abandoned the vessel, and she was not actually in his possession ; and, thirdly, a recri- minatory defence, charging the marshal with negli- gence and improper conduct. Upon the first point, I am sorry to observe that the aflSdavit is rather evasive, for he does not take upon himself to assert that he did not know that the vessel was in the custody of the marshal, but merely that during the week or ten days in which he bad officers and men on board, no notice was given hm that she was in custody, and that there was no person employed by the marshal or custom house on board. COURT OF VICE-ADMIRALTY. fll9 oatcnded, OD now in lal served ssel in the his legal Sj who do e marshal 's in New fectly es- iration is, tisfactory relate to that the dly, that 1 she was , a recri- th negli- ;rve that not take that the t merely I he had ven him 10 person 1 board. June 3ntli, 1819. Now the marshal has sworn that the monition was The cohack. standing affixed to the main-mast of the vessel a few dajs before the removal, when he went on board to ascertain it. The conversation between the marshal himself, Captain Gordon, and Captain Godfrey, a few days before in his office, shew that he was gene- tz\\y acquainted with it. But after all, without any particular evidence, who is the person who pleads this ignorance ? It is the captor himself, who was bound in duty to put the vessel under the custody of the Court of Admiralty, and who would have been guilty of a breach of his duty if she were not in that custody. It is evident then that Captain Go^frei/ knew that she was in the legal custody of the marshal, and this might be sufficient for the purpose^ although the marshal might have no person actually on board, for which there might be good reason, without any imputation of neglect. But he seems to rest his de- fence upon the marshal's having given her up to go to sea, and having afterwards no person on board. The marshal was certainly not justified in giving any sort of consent that this vessel should be sent to sea : but it appears that, whether right or wrong, that proposal had the approbation of all those who might be considered as the representatives of Captain Godfrey, for Mr. Black, his agent, had consented, and agreed to the proposal that the merchants should guarantee the value of the vessel ; and it was a petty officer and seaman of the Emulous, Captain Godfrey's own vessel, who were fitting her out for sea. But in reality this was a business which rested only in intention, and was abandoned before it was carried into effect, and Colonel Roherton expressjy states, that, *' when a stop was put to all farther proceed- ings, the Cossack was delivered up to the captors.'* ■ill :!i-i .••iU f-'\ S20 The CoiSACK. June 30lh, 181j, CASES DETERMINED IN THE If the marshal had no officer on board, and she was left in the undisturbed possession of Captain Godfrey's officer and men, it seems to have been in consequence of the suggestion of Captain Gordon himself, the commanding naval officer, and his wish that the captors themselves should perform all the necessary labour. If in compliance with the wish of the commanding officer, the marshal being desirous of saving expence, put no men on board, the care of the property devolved in consequence upon Mr. Black, the captor's agent, who resided in that port, and who by law was intrusted with the custody like- wise. It is strange that an arrangement which seems to have taken place, by the suggestion of the com- manding officer, for the benefit of the captors them- selves, should now be brought forward as a charge against the marshal, and assigned as a reason for auperseding his authority. But that the vessel was really in his custody is plain, from his going on board a few days before the removal to look if the monition was still affixed, and from his directing the officers of the customs to remove her to the wharf, only the day before Captain Godfrey carried her oflf. It does not appear I think that the marshal was guilty of any culpable negligence, ia not providing for the security of the vessel. She was placed in the same situation with other vessels of the same descrip- tion, respecting which no complaints have been made; she was within sight of his own windows, a»id he had given orders to have her removed to a better place at the wharf. No proof has been brought that the vessel was ever in any sjtate of risque or danger. But if the marshal had been guilty of the greatest negligence, still it was no reason that the vessel should be forcibly taken out of his posses- •WD; and sent to another port. If such had been I actually t circumsta remonstrs conduct ; against i( and as Cs marshal's niedied b captor hii Godifrey ' fore, he si without 1 brought i no very ci shal, yet of the ves to his stri appear to in not suj removal t gcnce, it Captain C His Maje Jul 'T^HIS -■- lice the Princ This Gi 1. Th( The Johanna.— -JVcwcom&e, Master. Judgment — Dr. Crokc. 'T^HIS is &n American vessel and cargo under a license from Sir John Coape Sherhrooke, under the Prince's order of the 13th of October 1812. This case is indefeasible upon every point. 1. The license was not produced till after the cap- June iJOlli, mix COURT OF VICE-ADMIRALTY. 521- actually the case, the captor should have stated the r^c Comaok. circumstances to the marshal himself; he should have remonstrated with him for his negligence, or bad conduct; he should have protested, or complained against it, and as the captors have a joint custody, and as Captain Godfrey had an agent at the port, the marshal's neglect of his duty might have been re- medied by more particular care on the part of the captor himself. Nothing of this was done. Captain Godfrey was in the marshal's office a few days be- fore, he said not a word to him upon the subject, but without further ceremony put his men on board and brought her round to this place. Though I can see no very culpable misconduct on tiie part of the mar- shal, yet his assent, though tacit, to the employment of the vessel against the privateers, was not according to his strict duty: and I must confess that there does appear to have been something of a want of activity in not sufficiently attending to the vessel, and to her removal to the wharf. But if it were greater negli- gence, it would afford no excuse for the conduct of Captain Godfrey.— I condemn the ship and cargo to His Majesty. Juh/ 14th, iai3. Liconce no ,)rotectioii to parties not spe- rilicd in it. EviJence of vo^iiige. licens* nut uu board, H •ii.i 8122 The Johanna. July 14th, 1813. CASES DETERMINED IN THE lure, and was not brought in till the master returned from the United States. The story which he tells is this, that he did not mention the license whilst he was on board the privateer for fear it should be American ; that he was sent back to his own vessel, and there put into a boat and landed upon the Ame- rican shore, which was near ; that whilst he was passing the privateer in the boat, he held up the license in his hand, which was the first time he at- tempted to make it known to the captain of the pri- vateer; that he came to this province from the United States, and brought the license. The license is granted to Moody and Co. and has no connexion whatever with this vessel or cargo in particular, and therefore, even admitting that it were a protection, it must be proved to have been on board. By not pro- ducing it in proper time to the captor, they have placed themselves in a suspicious situation as to the reality of its having been on board at all, and it would be necessary to establish that fact by better evidence than the mere affidavit of the master. 2. The vessel was taken half a mile from the American coast, and the master admits that he was steering for East Port in the States, He swears however that he meant only to touch there, and that his real destination was to Halifax. It may be doubted whether, adopting the principles which go- vern blockades, a vessel can be permitted to touch at a port not comprehended within the license, being such a port as that a su.spicion may be justly enter- tained that the cargo was intended to be landed, which is evidently the case with all the eastern ports of the United States. This supposition is confirmed by the papers. The clearance and other ostensible documents of that nature profess a voyage to East Port, a deception which is usually admitted io be 1 : the same mere fori it upon ( faith oug that he a]lowanc( whatever I cannot rality, ani mercial ( excuse fc all oblig witness w master hs the Uniti what rca not praci Court at to be fal charter-pi This was obliged t< to clear c into for i must hav is inconci selves un( if it was < pose of ai If thes the licens license si Halifax. not claim have not COURT OF VlCE-ADMIllALTY. 5sa ' returned he tells is whilst he hould be >vn vessel, the Ame- t he was d up the ne he at- f the pri- from the be license connexion ular, and tection, it ' not pro- bey have as to the 1, and it by better Jr. rrom the t he was e swears and that may be hich go- touch at e, being Iv entef- landed, irn ports )n firmed stensible to East d io be July 14th, 1815. justifiable. But there is an ajQidavit of the master to The johawna. the same eftect. This however is said to have been a mere form of office, and that he has now contradicted it upon oath, in his claim and examination to which faith ought to be given. It is not however denied that he really swore to that affidavit. Whatever allowances n)ay be made for voyages of this nature, whatever necessity there may be for some deception, I cannot so far divest myself of all principles of mo- rality, and all rules of evidence, as to think any com- mercial conveniences or official forms, a sufficient excuse for violating the most solemn and serious of all obligations, and to admit the credibility of a witness who has been guilty of such a crime. If the master has admitted that he has forsworn himself in the United States to deceive his own government, what reason can possibly be assigned why he should not practice the same art to impose upon a British Court at Halifax ? The latter oath is full as likely to be false as the former. But there is likewise a charter-party on board for a voyage to East Port. This was not a necessary document. They were not obliged to produce this instrument to enable the vessel to clear out from Boston. It must have been entered into for the security of the parties themselves, and must have shewn the real nature of the voyage. It is inconceivable that parties should have laid them- selves under the legal obligations of this instrument, if it was entirely false, and without any apparent pur- pose of advantage. If these difficulties could be removed, the effijct of the license itself remains to be considered. It is a license simply to Messrs. Moody and Company of Halifax. Though they are on the spot, they have not claimed in any capacity whatever. The claimants have not stated themselves to have any connexion, or 524 The Johanna July 14th, iC13. CASES DETERMINED IN THE • privity whatever, with that house of trade, or even any transfer of the license from them. Nor indeed does their name occur in the claim. By the late de- cision in this Court, a license is a mere personal privilege which connot be extended beyond the par- ties specified in it. It has been alledged in argument, that the claimant might be able to clear up and prove all these points, that they might shew a connexion between Messrs. Moodi/ and themselves in this in- tended importation, and which would likewise prove the reality of the destination to Halifax. Further proof can never be allowed where there is no ground laid for it in the original evidence. It is said indeed that this was a transaction of a covered nature, and therefore that the real facts could not appear in the original evidence. This may be true as far docu- ments go, but the master must be or ought to have been acquainted with the truth. If such connexion had subsisted he must have been informed of it, and he had the opportunity of stating all such facts in his claim, which the Court might then have allowed the parties to establish by evidence. Here no cir- cumstances of the kind have been pleaded, and yet the house of Moody and Co. was here to have inter- vened by a claim, and brought it to the knowledge of the Court. ^ I reject the application for further proof, and condemn the vessel and cargo. JUD( A CLA ^ L.B for George of flour a Ward, anc for 750 ba and Joseph This ca comes with and other 1 only for th any materis The lice Company o who are n Dcxion wit] Mr. Coll York had tile transac vessel calle obtaining s cargo of fli ment betw Allison. [ transmitted that the ca license whi( A differe late cases^ > or even or indeed e late de- personal the par- Lrgument, md prove connexion 1 this in- 'ise prove Further ground id indeed turcj and ir in the ar docu- t to have onnexion f it, and facts in allov^'ed 1 no cir- and jet ve inter- owledge >of, and COURT OF VICE-ADMIRALTY. 525 The Cuba, Thomas, Master. Judgment — Dr. Croke: A CLAIM has been given for this sbip by Daniel •^^ X. Bishop the supercargo, and Enos CulHns, for George Thomas of New York, and for 100 barrels of flour as the property of Freeman Allen, Muses Ward, and Bishop himself, all of New York, and for 750 barrels of flour, as belonging to Enos Collins and Joseph Allison of Halifax. This case therefore in its general circumstances comes within the principles of decision in the Johanna, and other late judgments in this Court. It remained only for the claimants to shew if they could discover any material distinction between them. The license is granted to William K. Reynold and Company of Halifax. The claim is for other persons, who are not alledged to have any privity or con- nexion with them. Mr. Collins swears that Freeman Allen of New York had funds in his hands, from various mercan- tile transactions, and particularly the proceeds of a vessel called the Amanda. That being desirous of obtaining a remittance to this country, the present cargo of flour was laden in consequence of an agree- ment between Moses Ward, Bishop, Collins, and Allison. That a license had been procured and transmitted from hence, and which had expired, and that the cargo therefore was sent under the present license which was procured in the United States. A difierence has been taken between this and other late cases, that the property there belonged to ene- July 14tli, Licenses no protfclioii to peisfjiis iiol spe- cified. No ex- ct'piiod in favour of Rr'aiih sub- jects. ■ ; 1 , ! ; ' ■ ' ' y: i j ,-' ■' 'i ' ' ' !t A.: i\ ! 4 i4 } fjj. ;? h4 526 The Cuba. July 14th, 1813, CASES DETERMINED IN THE mies, in this a part is claimed as belonging to persons of this town, and it was therefore argued that they were entitled to greater favour and latitude. I can- not admit this circumstance to have any weight in the decision, because in all transactions with enemies, they are entitled to full as much good faith and libe- rality as are shewn towards our own countrymen. And so far from its being any special merit in British subjects to carry on a trade with the enemy, which is said to counteract all the inconveniences of war, and to continue the blessings of peace, it appears to me that the balance inclines rather the other way. If an enemy trades with this country, it is at his own open risk, if his property is seized, not being pro- tected, it is confiscated, nothing farther. A British subject trading with the enemy, unauthorised, or beyond the limits of his privilege, is guilty in some measure of a violation of his allegiance, it is a high misdemeanor in communicating with and treating those as friends, whom the sovereign of his country has pronounced to be enemies, and it is decidedly un- lawful. I admit that there is no appearance of fraud in this case, and I am extremely sorry that a respect- able mercantile house in this place, without any bad intentions, should incur a considerable loss, but I fear that they must be involved in the consequences of the acts of those who have shipped these goods in the enemy's country, even without their knowledge, or approbation, under an insufficient license. I can- not however agree with their counsel that no sort of blame, or at least of inadventure, is to be attributed to them, and that the validity or invalidity of a license like the present was a nice point of law, with which mercantile men ccnild not be supposed to be acquainted. For thig v,as not a sudden unpremedi- tated meawire, bat a iegulat deliberate transaction. COURT OF VICE-ADMIRALTY. the claimants bad funds in the United States which it was their object to brin<«; into this country by car- goes of flour. There were two grounds, upon either of which they ought to have known the insufiiciency of this license for that purpose. The first is that of plain common sense, upon which all law is founded, and to which it may be ultimately referred. No person of business, I conceive, and of sound under- standing, upon reading the license, could suppose that a privilege granted to certain persons by name, could be any authority to any other persons not men- tioned, or that an instrument which has upon the face of it nothing of a transferable form, or import, could be hawked about from one end of the States to another ; and, without even the ceremony of an in- dorsement, could serve to protect any cargo, the pro- perty of any person whatever, in any port to which it might find its way. But in the next place, the restriction of licenses to the persons mentioned is no new doctrine. It was fully established ten years since in the case quoted at the bar, that of the Jonge, Johannes, 4 Hob. 263, where it was plainly laid down " that government was to judge of Ihc particular persons to whom licenses were to be granted, and that when a license is granted to one person it cannot be extended to the protection of all other persons, who may be permitted by that person to take advantage of it." This case has been long published, and is familiar to all the gentlemen of the profession, who could have advised the parties if they had consulted them. If they had been so informed, either from those learned gentle- men, or even from their own good sense, they might have procured proper licenses in their own names, and should have cautioned their correspondents in the United States, not to risk their property except upon say The Cuba. .Inly t4th, 1U13. u 528 Tlie Cuba. Jnly 14tli, 1813. J*ly 15, 1813. A vessel tnUng in a cargo at a port on licr re- turn from Lis- lion, not pro- tected by a li- cence, wbicli viis not coai- plitd with in other respects too. >*>hip and cargo coudeuuicd. CASES DETERMINED IN THE such licenses as were unexceptionable. Thoy have acted therefore iniprudentlj and incautiously, and however unwilling I may be to pronounce a judf.. mcnt which may occasion loss to gentlemen of good character, and who have incurred no imputation of improper practices, after weighing deliberately all that has been argued in their favour, I think myself obliged to adhere to a rule of law, which if once broken in upon, would lead to abuses more cxtciibivc than can easily be conceived. Tl le Eunice, Hi^gs. Judgment— Dr. Crolce. rpHlS is a case upon a licence granted by Mr. -*- J//an, under the authority of Admiral /V«wj/cr, si- milar to what was decided upon in the case of the Reward, in this court. TJio case of the //o/>e and others, has been quoted from a common newspaper, by the counsel for the claimants, in which it is stated, that the High Court of Admiralty had pronounced, that these licences came within the meanina: of the Orders in Council, and had decreed restitution under them. I see no necessity for the court to re-consider the principles of decision which guided it in the case oi the /?«?faiY/,ortoenter into all the topics which have been argued in relation to that subject, because there are other grounds amply sufficient to enable it to pass judgment m the present case. But I may ob- Nerve by I ticated n authority very inac {•iveii, is t ever aduii ticular cai and wher marks, or rectness. courts of j depend foi the credit internal ( inaccuracy to the coui Neither not occur called up( the decisic would adh the public through al with the m one of the i or any otiu qiiestiori a! since it is d similar in ii dona perfec must alwa none are e: timevS err, a empted fn decisions o conclusive, COURT OF VICE-ADMIRALTr. Heive l)y the way, that most certainly the iiriaiuhen- ticatf)d reports of newspapers cannot possess any authority in a eoiu t of jiisticf, especially when the very inaccurate mode in which they are usually given, is taken into the consideration; 1 must how- ever admit that some attention might be due to par- ticular cases, upon the footinji; of common notoriety, and where they were accompanied with internal niarks, or other proofs of their genuineness and cor- rectness. And indeed the usual reports of all courts of justice, since there are no official reporters, dependfortheirwei<>ht and authenticity, solely upon the credit of the reporters, and other external and internal characters of veracity. Of considerable inaccuracy in the account of the case now offered to the court, there is abundant proof. Neither am I prepared to say, that cases might not occur in which the court might not think itself called upon to deviate, however unwillingly, from the decisions of the High Court of Admiralty. It would adhere to those cases as a general rule, from the public advantage of an uniformity of decisions through all his Majesty's courts, and it would bow with the most submissive respect to the opinions of one of the ablest men who ever presided in a British or any other tribunal; but there will always be a question as to the applicability of reported cases, since it is difficult to find any two whici are precisely similar in all points; all the facts in a case are sel- dom perfectly stated ; exceptions from general rules must always be understood to exist, even where none are expressed ; the greatest tnen may some- times err, and neither judges nor reporters are ex- empted from the common lot of humanity. Ihe decisions of the Lords of Appeal are in themselves conclusive, because they are judgments in the last 2m 529 The Eunice. July 15, Ills. ;!! !ri !:! M ^M aso CASES IJKTERM!Ni:i) \S TIIK The Ml) ir,, J8J;1, resort; l)ii( llic ju(i,i;iiw.iits of llic li-h (\»nrt of Ad. _ niiraUy arti siihjcct to it!vi>ioii iiiid repial, uiul lilt tln'y liuvo l)it'H coiifiriiud l»y iln- siipcrit-i Iriltiiiuii, in- at Iciist liav<; ac<|iiirL>(l sor.iciiiiii;;' uf a coiiliiiiu'd -Mitliorily from loiiz acMjoit'.scriici', tluy arc iiotal).s(j- Intely final. 'riioii;;li iiioro exltiisivt; in flie locality of its jurisdiction, tiiai court lias no faillicr pow.irs or authority ihaii conits of vu c-alniiiully, wiiliiii their rcspccdv*' tlion^li iiarrcr.vcr limits, and llu-y are holii c<|nally suhjrct tt)tlif '.s Vicf (JohhuI at IJoshm, or hy iUr. .\p„nis/i Miiiisicrin America, outfit not to ix; i\«'m|)(cd lioiu liriliah (:a|)tmv, and that sncli |»a|)(i.s slionid not ht- rrs|Mrti(i by His iM:ij<'sty's cmizcis: in pinsnanci- olan oidisr lioin the Lords CoiMinissioncrs of the Admiralty, the captains and conimandciH arc to ji»-ovcrn tlunisLlvt-s accord iiiijly." In llu; present case, any dilleience of opinion r«'.s- pcctinjr llu; validity of these licences wonid he iiii- material; lur, allowing the licence in itself to boper- i'cctlv valid, it cannot protect tliis voyage. 'I he li- c(.iu;e says in express words, that it is " to avail only in a diiect voya-e to Lisbon, and back to the liiilid Slalcsr The words din ct voj^a^e iwniit be iMiderstood to apply to the return, as '.veil as to the voyage out. 1 do not «;nt(r into any discussivjn re- lating to the cmtract entered into at Lis/wn wilh the I^u^lis/i Conui>issary, to carry grain on fi-eigiit to lu-mri ia Poriu<>-al, and to return back to l^isbon, MJiich was performed, and which having been d..ne under the . iithority of utlicers of the Uritislt govern- ment, and in the BrilisU service, the court would ii> I be disposed very readily to consider as a devia- tion fi(,ni the licence, i-.-,pecially it is now a past tiiinsaction ; yet undoubtedly the vesserssa'liu"- from Lisho : to :St. I'bes, wa.s uuL a direct V(*yage fmni L/.s" ,// to lioslvn, whicli alone the licenci; j)erinitted. It was rather a new voyage altogether from St. L'bes, as tiie vessel reguiarly entered there, look in a cargo, and cleau'd out from thence to Boslon. INeither did tiie licence allow of a return car^o, and the vessel should only have returned in ballast, 2 M 2 ;•» ,;k.ttt 532 Th* Eunice. July IS, 1813 CASES DETERMINED IN THE or with a neutral freight. Tlii>» in proved not only by the form of the licence, wliich gives no such li- berty, but likewise by the Order in Council of the 13th October, 1812*, which states that it is expedi- ent " that vessels which shoidd arrive at Cadiz \vith certain licences, should be pc rndtted to return with cargoes ;" it therefore permits them accord in-j; I y. It is to be thence inferred, that without that Orthr la Council, vessels upon the usual licences could uot return with cargoes. This case is not within the |)ermission granted hy that order in many respects.-,-First, that order is confined to licences granted by His Majesty, or hy Mr. Foster; nor does the order, which conlinns Ad- miral Sawyer's licences, extend to return cargoes. Secondly, the permission is only to lake the cargo on board at Lisbon or Cadiz, but this was shi[)|)cd at St. Ubes. Thirdly, it is provided, that all vessels claiming the benefit of the order shall be provided with a licence from His Majesty's Minister at Lis- bon or Cadiz, permitting the shipment of such car- goes of lawful merchandize, to be therein described. The claimant states that he applied to the Minister ^i Lisbon for a licence, which was refused him ; and under whatever excuses he may endeavour to ac- count for the refusal, it is clear that His Majesty's Minister acted according to his duty, in not grant- ing a licence to take in a cargo at St. Ubes, which he knew was not allowed by the Order in Council. I condemn this vessel and cargo. * See Appendix, C, not only such lU nil of the i cxpcdi- idtz witfi urn with ugly. It Order ill oiild LlOt anted by ; order is :y, or by irnis Ad- cargoes, he cargo ; shipped II vessels provided ir at Lis- juch car- escribed. Minister linn ; and nr to ac- ^ajesty's ot grant- ?s, which Council. COURT OF VICE-ADMIRALTY. The Pilgrim, Baker. 633 Judgment.— Dr. Croke. July 23, 1813. frmiS vessel had a licence from Lord Sidmouth to Licence. e«. -*- import a cargo of provisions from any port in SnTwanVo*? the United States into Cadiz. She sailed from New watemotprov. Orleans, and was captured not far from the Ameri- can coast, as she was proceeding to Marthas Vine- yard, or some other port in the Eastern States of America. Tor this deviation from the voyage which was ex- l)ressed in the licence, two excuses have been plead- ed : the necessity of putting into a port in the United States from a leak, and from the want of water. The event which is alledged to have occasioned these circumstances, took place at the mouth of the Missis- sippi, on the 15th of April last. The vessel grounded upon the bar, and besides receiving some injury in her hull, they wore obliged to start their water to lighten the vessel, and what they took in to fill up the casks, proved to be of a brackish nature. To ascertain some facts which were connected with this claim, and which might be proved by mere inspection, the court issued a commission to the Registrar, with two competent persons, named by the parties; and Ihey have now made their report, which has been read and argued upon. And, first, with respect to the leak. It is stated in the log-book, that on the 16th of April, the day after they struck upon the bar, " they tried the pumps and found that they made considerable water." On the 29th, " they found the leak to in- crease to 120 strokes per hour, On the first oi M^y 53i CASES DETERMINED IN THE piiriuM. it increased to 160 strokes; on the atli it .seemed ./«tyl7'i7i~ '""^''* ^^'^''^'^''' ^'"^ tlioy found the sea n in the lundjcr- port leaking very had, in snch part that it could not be stopped inside. On the 10th, they discovered a new leak in the bows, which kept the pump goiuo- every glass. On that day, finding- the leak to in- crease, and the water shoit, they thought proper to try for Newport or the Vinci/anir It is to be remarked, that though the leak is again brought forward in the master's claim, yet upon his examination, he says nothing about it, and assio-ns only their being short of water, as the excuse for proceeding to Nimtuc/iel. However alarming this accident may appear u[)on the log-book, upon an examination, which has been made of the real state of the vessel, by persons well skilled in seamanship, they have reported, in the most decided manner. " that tlie leaks of the vessel were not of so serious a nature, as tojuslifi/ the mas- ter to bear up for a port, instead of prosecuting his voyage." The excuse of the leak is therefore proved to be entirely frivolous, and indeed was abandoned by the claimant's counsel on the last argument. The plea of a want of water is not new in courts of Admiralty, to accom»t for a devia'ion from a lawful voyage, and particularly for entering block- aded ports. It is a subject which has blen fre- qnently discussed, and the law relating to it has been settled, imder almost every pa.ssi'ble aspect. It may belaid down as a general principle, that tl'.e wat.t of water is no legitimate excuse for a deviation from a lawful voyage, where it nnght have been pre- vented by ordinary prudence, or where the master might have obtained a supply without such devia- tion. Wc have only to apply this rule to the cir- cuiustances of the present case. COURT OF VICE-ADMIRALTY. 53!* h appears from the Jog, that on tlie 15th of Apri/, when they ran a f^round, *' the pilot gave orders to start the water, which was immediately done." if there was any doubt respecting the quantity of water which was discharged, it is cleared up by the claim, which states that " the pilot directed ail. the water, except three casks, to be started, in {;<> ng which some were stove. They came too as soon as possible to fill the casks. After fdling two casks, they found the water quite brack- ish and unfit for use. After repairing their rigging, they then got under way." If this account is true, it is clear that when they commenced their voyage from the Mississippi, upon the 15th of April, they had only three casks of good water. Now it is stated in the log. that they went upon allowance of water of three quarts a man, upon the second oi May, seventeen days after leaving the river. Upon the 17th they overhauled the water and found about .300 gallons, which agrees likewise with the report of the inspectors. Now how is it possible, that if they had only three casks of water, after leaving the Mississippi, yet there should have been a sufficient quantity to have supplied a crew of sixteen men for about a month, half that time too without any limitation or restric- tion, and yet have left a surplus of three hundred gallons? This problem, which I stated to the counsel for the claimants, they were unable to solve. The two facts alledged are inconsistent, one of them must be untrue ; and as the quantity of water on board, upon the seventeenth of May, which was only the day before the capture, is fully proved, the other part of the statement must be false, and the general credibility of the party is much weak- ened. The Pilgrim. July Si3, 1813. M ! i i:hi ■II 536 The Pilgrim. July as, 1813. i^ GASES DETERMINED IN THE Let us however take the case upon the party's o\yii statement, which must l)e allowed to be ad- ministering to him an ample uicasure of ju.sticc. Upon the examination of the - in want of umt ilicli The conrt was of 0|)inion that the n excuse was neither proved nor suflicient. i hat no accident had hai'pened but tlie loss of two rusks of water, which were said to have been spoiled by the sea water, that vessels ought to be better supplied than lo be distressed by wuch small accidents, and that if they had had a suHicient quantity ;il iirst it coold not have been so reduced. As to the leak, though the claim alhodged tiiat considerable repairs had bee done at iMadciiut on that account, yel nothing oi the kind appeared in the log, which was very well kept, and (>articular, giving an account of the work each day, and which was only stated to be " re- pairing the sails, scraping and painting the vessel, and such trifling works." Aor were there on board any bills of tiie charges said to have been incurred for these repairs, and which wcie to be paid by Messrs. Gordon, but must have been examiiuMl by the master, and some account of them brought with him for the satisfaction of his owners. And with respect lo the detention, the log-book is at variance with the claim. The claim states that it was in consequence of the refusal of a clearance, and being obliged to land his cargo; but the log, after stating that, on the 13th oi' Jpn!, an American privateer had iufornuHl them that " he had had an engagement with an Algcrine, and believed they were out in numbers," the master "judging the danger of proceeding to Cadiz too great, concluded to ht s. And jk is at that it eaiance, the log', merican had an ed they ing the icluded [jpeared though ikely to COURT OF VICE.ADMII?.\LTV. 539 I do not think it iieee.ssary to enter into tlie tik- Sri,„ontr riiiestion of blockade, but I am inclined to think —-111!.-, that there was no breach of blockade in this case. "'^ - '' '*" '' i^';^,'- harbour, to which this vessel was going, was not wiihiii the limits of the blockade of the i>r/a- tvore, being .'}() miles to the northward of cape /iJfu,; the northern point of ihe inoulh of that harbour; and considering that the vessel was in ballast, and other circumstances, the account given by the master, that he was only running along the coast to obtain a pilot, is deserving of some credit. The vessel was condemned. In the evidence in this case it ajipeared that Sid- mouth's licences, as they are technically called, sold for 1500 dollars, and Forslers licences sold for '200 dollars. The Carlotta, CarvaUw. JaDGMENT.- -Dr. Croke. July L'o, liji,; nnHTS Portuguese vessel sailed from Oporto bound I'.io. tad,- „r J- to Philadelphia; and there are two rjucstions, I'^-.S^trm- the one of blockade, the other of contraband. '*""'' Meeting with bad weafher she put into Porto Rico, wliere she sold Jier cargo, and took the present cargo on board, with which she was pro- ceeding to PhiladeljjhJ when she was captured. No blockade of the Delaware existed when the vessel left Oporto, which was upon the 25th of October : but as the owners are answerable for the acts of the master, if it appears that he was ac- quainted with the blockade before he left Porto iiico, the consequence of it must fall upon this i i'tr ■fit 540 CASES DETERMINED IN THE The Carlotta. Juljf 26, 1813. vTssel and c arq;o. lie sailed fn the -,.,. »,v .-«..» .1 ,,uii. thence iij il/r/^. Public notification was made of tiie lUthof intention of his Majesty's government, that the blockade should take place upon the 6th of Fe- bruary. Sir Jo/m Warren issued a f)rocIamation, that he had ordered the vessels under his command to blociiade that port in execution of the order, and the actual blockade thus commenced. These facts must have been known at Porto Rico, so near the scene of action. It has been urgiied, that great latitude was fijiven to the Ame- ricans, with respect to blockades in Europe, on account of the distance; and undoubtedly the same favour would be shewn to the subjects oi European ueulial countries, and that this vessel therefore ini.uht have gone to the neighbourhood of the De- hnrarc to enquire respecting the blockades in Ame- ric.t. lUit this is tiot: in reality a voyage from Eu- n<,i>r, but from Por/o Rico, where the cargo was (;:;.< 11 in. Even iuiuiilting the liberty granted to the Jntnicans, m its fid lest extent, to apply to this (Uis<\ and that itje voyage was from Europe, they could not have sailed to the mouth of the blockaded port, to inquire of tlie vessels there stationed, and to have gone in, as the master swears was his in- t< iition, " orjiy if permitted.' As the vesse' went to Porto Pico, which is within the reach of speedy intelligence from the port in question, that was tl/e place to have nuide the necessary inquiries. Ac- quainted as the master must have been with the onbn-, and the proclaujation, even if any doubt re- mained whether a blockade was really carrying on, he ought to have stayed there till he could have re- ceived information as to that fact. Sailing in the face of those documents, and finding the Delaware blockaded, the master has been guilty of a breach upon the cJe of the that the 1 of Fe- laniation, ioininand lie order, at Porlo liaa been the Ame- irope, Oil the same European therefore the De- in Ame- from Eu- argo was ranted to ly to this }pe, they ockaded led, and s his in- ise' went )f speedy ! was the es. Ac- with the ionbt re- rying on, have re- g in the Delaware a breach COURT OF yiCE-ADMIRALTY. of that blockade, and was properly captured by the blockading scjiiadrou. 541 T!ic Cahlotta. The question of contraband is now unnecessary. ''"'^ '^'^' '"^ I condemn both ship and cargo. The GusTAVA, Siceuherg-. Judgment.— Dr. Crolce. npiilS vessel and cargo, which consists of pro- •'- visions, have been claimed, as Swedish pro- perty, for Emanuel Hay, of the island of Saint Barlholomew, by the supercargo, Ehenezer Chip, of Boston, together with his own adventure. He states in his claim, that Raij, being at New York, gave him a power of attorney to purchase a brig, that in consequence he bought this vessel of Silas Pennyman, loaded her ou Rays account for the present voyage to Madeira, went in her as a supercargo, and from thence she was to go to St. Bartholomew. It is a general rule that a neutral may purchase a vessel of the enemy during the time of war.* The order respecting France only has formed an excep- tion to it, and that was merely a retaliatory mea- sure, on the part of the British gjvcinment, in con- sequence of a similar order by the Frewc/i govern- ment. Such purchases may be perfectly fair, but experience has proved that they are frequently mere deceptions, for the purpose of carrying on the enemy's trade, under a neutral appearance. It is required therefore in all such alledged transfers, that the whole should be clearly and fully proved, anm^.tX 1 hence to the Cnilal Slotc,, or wherever he chooses and hivewise to sell iier at his discretion. li" property consists in the aosulute ri,:,dit of dis- posin*. 01 any thing-, ihis vessel, under tlie power of aUorney, was as much the property of Mr. Clap as can wcrll he conceived, thouijli unde-r the name of agent. The alledged purchase having been made in June, Clap, who before had tht management of the vessel, and had go„e in her as supercargo upon former voyages, continued to act in the saiue capa- city, and he ap|)ointe(l the present muster immedi- utely before she sailed, whif h was on the 17th oi'June. Jt does not api)ear when the cargo was shipped, and it is not improbable that it w is on board when the alledged transfer took place, as C(ap has not sfated any more particulars relating to the i)urchase of the cargo than he has in regard to the ship ; aiul the shortness of thethne, between the alledged purehase of the vessel and that of sailing, would scarcely ad- mit of the shipment of a cargo. Besides the power of attorney, there are instructions from Rai/ to Ciap. He is there directed to carry his cargo to Madeira^ from thence to the Uuiled States, or St. Barllwio' mciv's, or ant/ other place. So that he is authorized to carry on a trade, from and to the Untfed Slates,, or any other kind of traffic he chooses to enga'ye in, ( .; 514 The My 26, kilSi CASES DETERMINED IN THE without any farther authority, and without any sort of direction, or obligation, that the vessel should ever visit the ports wliere the pretended owner re- sided, unless Mr. C/a/i should happen to he so dis- posed. There is one part of these instructions per- fectly inconsistent with any ownership in Itaif. After directing Ciap to go to Madeira, or St. liar, tholomew's, or any where else, he adds, that if Mr, Clap, under this wide autliority, shoidd take it into his head to " choose to go to St. JJarl/wiomewX' lie is advised to " consult our house," that is the house of Rai/. How could it enter hy any possibility into the uaindof an owner, writing to his own agent, to give any instructions in case he came to the place of his own xsidence, that he should apply to him- self? The claimant's counsel have eruleavoured to obviate this objection by supposing that lloi/ would be still in the United States, and that this was there- fore merely a direction to apply to his commercial house, in his absence. I think that this would scarcely account for the direction, if it were true; but it appears, in the same letter of instructions, that liaif was about to return homo immediately ; for he tells Clap not to write to him at New York, " as he should be returned before he received flu- letters ;" and the supercargo states that "Jie was going to return when he last heard from him." Even if it were possible to consider this as a bona fide sale, the vessel is not documented and navigated as a Swedish vessel. The treaty of 1661 is still in force, and has been recognized and con- linned, in all later treaties between the two coun- tries. ♦' Least enemies' property should be con- cealed under the disguise of friends," there are many very particular stipulations in that treaty, article the 12th, as to the safe conducts, passports, COURT OF VICE-ADMIRALTY. aii'l certificates, under whirli vessels and ffood 545 sare The GtSTAVA. to sail, vvliicli are to hv signed by the magistrates or commissioners of tlic customs, and a form of certi- ''"'^ *^' "'** ficate to be observed is introduced into the body of the treaty. And by a late treuty in 1001, article 7, " to obviate all the inconvenienct;s of bad faith," it is established " as an inviolable; rule" that any vessel " to be considered as the prope- ty of the country whose flag it carries, must have on board the papers and passports in due and perfect form, and that every vessel which sh d notobserv.- that rule shall lose all right to protection." Now this vessel had not any passport on board; Clap indeed has sworn that there was a rr i^ular passport at St. Bartliolome,ivs. How he should have known it does not appear, but if it really existed, this vessel could derive no benefit from it, as it was not on board, which is not only required by the law of nations, but the former treaty expressly stipulates that vessels "shall be furnished in their voijages with them, and the latter treaty says, that " the vessel must hove them on board." The certificates from the Swedish consul, and the commercial agent in the United Slates, cannot be considered as passports. I never understood that such persons had authority to issue those national documents, and indeed they are not so considered by the supercargo, as he refers for the real passport to that supposed to be at St. Bartholomew's. A vessel indeed, purchased in a foreign country, could not be furnished with the full and regular national documents, till they went to their new country, and till they could be procured, such consular certifi- cates might serve as a protection. But a vessel, under such circumstances, would be bound to go home to the country whose character she had ac- quired, to procure them. In a direct voyage for 9. w II il!i • : ■ 1 ! ■■ ! . iHi I..') IMAGE EVALUATION TEST TARGET (MT-3) // // A % ^ 1.0 Iri^ ilM I.I iiii !.25 t 1^ 1.4 — 6" M |||M 1= 1.6 V] <^ //, /: ■^. ^a /«!^ '/ Photographic Sdences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 546 CASES DETERMINED IN THE The GUSTAVA. Julii 26, 1813. that purpose, such certificate might be sufficient. But in this case the vessel was not only not ^oing directly to the island of her owners, an(t was making an intermedi'^.te voyage to Madeira, but there were no positive directions from the owner to go there at all, and it rested entirely upon the will and pleasure of Mr. Clap whether she should ever visit the terri- tories of the sovereign of the alledged owner, and the benefit of whose flag she claimed. Under every aspect this vessel and cargo are liable to confiscation. September 6th, 1813. A license cannot protect property when tlie im- porter is not comprehended under it. The Arab. SENTENCE.«»-Dr. Croke. XT PON the former hearing of this case, when ^^ farther proof was ordered, I stated it to be entitled to every favourable consideration The two vessels in which this flour had been taken, having been destroyed by the captors, together with nearly all the papers belonging to them, and this part of their cargoes transhipped into the Arab, under a defect of documents which was occasioned by th^ act of the captors, nothing more could be required of the claimants than the best evidence which the nature of the case will admit. The licenses under which those two vessels had sailed having perished, certificates of their contents from the secretary of the province, through whose office they passed, have been received as admissible. So with respect to the proof of the identity of the flour, the affidavits produced, corresponding with the marks, though an inferior species of evidence, have been allowed to be sufficient. COURT OF VICE-ADMIRALTY. It has been alledged that these vessels sailed just when the licenses were about to expire, one, nine dajs onlj', and the other, twentj days, before their expiration. Under the fair latitude which is allowed for the execution of these instruments, I cannot think that this alone can be considered as a fatal departure from the terms of them, especially if satisfactory reasons could be given for the delay. But the allowance to be made in favour of the claimants extends no farther than to the proof of the facts. These being once ascertained, the same rules of law are applicable to them as to other cases. The substance of the licenses being proved, they are liable to the same construction as if the licenses had not been destroyed. The burning of the vessels might render the captors liable to damages, provided the seizure had been unlawful, but it cannot affect the legality of the seizure itself. The Court has already decided in some late cases, that a license can only protect those who are de- signated in it. This property is claimed by Wood- ward, but the licenses were solely in the names of Reynolds and Co. and Moody and Go. ; Woodward not being in partnership or connexion with either of those mercantile houses. Neither Reynolds nor Moody were the importers of this flour, but Woodward, There was no bill of lading to them, the goods were consigned in the bills of lading to Woodward, who was himself on board. Moody in his affidavit has not stated that the flour was to be consigned to him, or that he had any sort of connexion with it. Reynolds has sworn that at the time he delivered the license to Woodward he told him that the vessel should be consigned to him, but from his mode of stating it, it is evident that this pro- mise was not made till after the license was actually o « o 547 Stptember 6th, 1813. 'Ill 'l! I 1 u ! ! 548 CASES DETERMINED IN THE The Arab, September 6lh, 1813. delivered, and therefore was no pait of the conditions upon which the license was procured, and in fact no such consignment was made. All the letters prove that the only concern, which it was proposed that Reynolds should have in the business, was, that in case Woodward did not arrive himself with the cargo, Reynolds should act as his agent, under the controul too of Mr. Dwalf, who had a power of at- torney to act for him. Neither Reynolds nor Moody therefore can be considered as the importers. Woodward was the real importer, but he is not in- cluded in the license. It is however sworn both by Reynolds and Moody that they procured these licenses for Woodward, and therefore it has been argued that though not mentioned by name, he was virtually comprehended in it, and the case of the schooner Nymph, which was restored by this Court upon similar grounds, has been quoted as decisive. That was a case in which Joseph Austin, a British subject, claimed a vessel and cargo, and deposed that he pro- cured a license from Sir John Coape Sherbrooke; that when he obtained it he requested to have it made out in the name of William Stairs, because he was desirous, for certain reasons which he stated, that his own name should not appear, and the license was never out of his possession. That case differs most essentially from the present. Though the license was in Stairs's name, it was ob- tained by Austin himself in person from the secretary, who perfectly understood that the license was granted in reality to Austin. This brought it precisely within the reasons of the case of the Christina Sophia,* where the party swore that he intended to include the several claimants under a license for him- * Quoted in Rob. 4. p. 264. onditions n fact no ;rs prove )sed that , that ia with the inder the er of at- ►r Moody m is not in- I both by e licenses :ued that virtually schooner tt upon i. That subject, he pro- "brooke ; • it made B he was that his jnse was present. was ob- Bcretary, granted )recisely ■ hristina 3nded to for him- COURT OF VICE-ADMIRALTY. self and Co. and the Court " acceeded to the favour- able suggestion that the Irish government might be apprized of this intention." In the Nymphe, the secretary was actually/ apprized of the intention of the applicant, and granted the license in the name of Stairs, professedly for the use and benefit of Austin. In this case it is not asserted that Woodward was in- tended to be comprehended under the designation of Reynolds or Moody and Co. or that the government was apprized of it. Nor would the facts bear out such an assertion. It is notorious that both Reynolds and Moody were engaged in license jobbing, that they procured them from government, and afterwards disposed of them as they could find purchasers, some in this country, and others were transmitted for sale to the United States, So little reason is there to believe that these very licenses were taken out spe- cially for Woodward, that neit.ak Reynolds nor Moody have ventured to swear positively that these were the very licenses which they delivered to Wood' ward; they can only state their belief that out of many licenses which they took out from time to time, and other circumstances, they believe these to have been the same licenses. Nor is there any suggestion that the governor or secretary was apprized that they were intended for the use and benefit of Wood- ward. After the license had been obtained, there is some- thing unaccounted for in the manner in which it was used. These vessels commenced lading, as is stated in the claim, in October, and he then procured li- censes from Sir John Borlase Warren, and Sir John Coape Sherbrooke. These licenses, whether originally valid or not, must have expired in January, for none of them were granted for longer than three months. The present licenses were obtained in January, and. 549 The Arab. Sq)temher 6th, 1813. 'li'r m, I .rt I i\ 5 i ! f'lf : r.ifijii it I ddO CASES DETERMINED IN THE The Arab. September Ctb, 18U as is sworn bj Woodward, for these very cargoes. Yet strange to say, on the 27th of March, when Woodward was in the United States with those latter licenses in his pocket, his two vessels sailed without them, with the two old expired licenses. When they had sailed out of Baltimore, they were ordered back by some of the squadron off that port. Finding that the old licenses were insufficient, which he must have known before, he then sent forward the two new licenses, with which the vessels again sailed upon the 4th of April. It is evident therefore that though he has sworn that these licenses were obtained solely for these two vessels, that he attempted to send them on their voyage without them. Why they were not put on board these vessels originally, and not till other means had been tried, and so late when they were near expiring, has not been explained. It is scarcely probable that Woodward should have kept them by him, and have ventured the loss of his cargoes, with- out any assignable motive. There is strong reason to believe that some improper use was made of them in the intermediate time, because otherwise Woodward's conduct is perfectly inexplicable. I have stated these circumstances in answer to the suggestions of counsel, who have endeavoured to «xcite the compassion of the Court in favour of the claimant, by representing him as a young man who had been innocently led into difficulties through inexperience and inadvertence. On the contrary, it is clear that this license has not been used in a man- ner consistent with good faith, and that there is no small reason to believe that it has been applied to other purposes than what appear upon the face of the transaction. But be that as it may, these licenses can be no protection to the property claimed, and which I therefore condemn to the captor. Se: rpHis -*- of tion unle case. A pro passport the block preceding It ma writer u| which pr VatteV serving t more ne( sacred b( these cou and the vidual p^ kind valii rity ; ori no specia sumed tc for the ] whatever It is ne* power o ■fii cargoes, ch, when ose latter i without ^hen the}' 3red back (liug that nust have two new upon the hough he solely for I them on re not put till other hey were s scarcely ; them by >es, with- reason to r them in ^odward's rer to the ourcd to ur of the man who through atrary, it n a man- ure is no pplied to ice of the i licenses Qed^ and COURT OF VICE-ADMIRALTY. The Two Brothers. {MitchelVi Case.) Sentence.— Dr. Croke. rilHIS vessel, with a cargo of flour, is the property "*- of an enemy. It is therefore liable to confisca- tion unless it is protected by the circumstances of the case. A protection is claimed for her, under a sort of passport from Sir Thomas Hardily who commanded the blockading squadron in the Chesapeake, and the preceding transactions which lead to it. It may be necessary to state from an accredited writer upon the law of nations, the foundation upon which protections of this nature depend. Vattel* says, in general, that the obligation of ob- serving the faith of promises towards the enemy is more necessary than even in peace, and should be sacred between enemies, in the course of war. Of these conventions are truces, general or particular, and the latter may relate to hostile acts, or to indi- vidual per sons. f To render an agreement of this kind valid, it must proceed from a competent autho- rity ; originally from the sovereign, but if there be no special order from him, every commander is pre- sumed to be invested with all the powers necessary for the proper exercise of his functions, and with whatever is a natural consequence of his appointment. It is necessary that commanders should have the power of concluding particular truces, and it is Ml SfptcmhtTf 1813. Commanders may enter into contriictH with subjects r)t the enemy l"r the supply ot' their tones mid pnint passports to protect them ill such trunsuv- tiunii. 'f! i • iW.III. C.10.5174. t Liv, III. c. xvi. § 235, &c. 5i2 The Two CnoTUEns. SejHember, 1813. CASES DETERMINED IN THE therefore naturally presumed that a general or com- . mander in chief is invested with this power. Such truces engage the faith of the nations. If indivi- duals infringe a truce, the public faith is not violated, but the offenders should be compelled to make a complete reparation. Another species of conventions in war, of much the same nature, are passports, which are a privilege given to certain persons to go and return in safety ; or for certain things to be transported in safety. The prince may intrust to his officers the power of granting passports, either by an express authority, or in consequence of the nature of their functions. These principles are applicable to the present case. The vessels which were carrying on the blockade of the Chesapeake were greatly in want of flour. An agreement was therefore made by Captain Oliver with the present claimant, an American, to bring two cargoes of flour from the United States for the use of the squadron. He accordingly procured them, but when he reached the British squadron. Captain Oliver was gone off" the station, and the vessels then there stationed were not at that time in want of flour. Sir Thomas Hardy, who had the command of the squadron, therefore gave a passport to Mitchell, to proceed with his vessel to Halifax, in the course of which voyage he was captured. The agreement with Mitchell was entered into by a competent power. Captain Oliver had either the command of the squadron, or must be presumed to have acted under the authority of the commander. If a power of making such agreements is vested in commanders in any case, it must surely belong io them for the purpose of procuring necessaries for the forces under their command. They have no autho- t r i COURT OF VICE-ADMIRALTY. nty to grant passports to license the trade of the enemy in general, or for any purpose not connected with their own service, but they must have the power of entering into contracts with the enemy, and grant- ing passports to supply the wants of their vessels. The contract made by Captain Oliver with Mitchell is clearly proved. When he had performed his part of it by bringing the flour, the officer who had en- tered into the contract was gone, the flour was no longer wanted. What could be done by the com- mander upon the station ? It was impossible for Mitchell to return with his cargo to the States. As it was brought under a contract made with competent authorities of the British nation, he was intitled to farther protection. Sir Thomas Hardy therefore gave him a passport to Halifax, where the cargo might still be purchased for the use of the British navy, or at least for the general benefit of that colony. This cargo was therefore protected under the ori- ginal contract, and since, under all the circumstances of the case, the subsequent passport was founded upon it, and the primary object having been defeated, was the best mode of proceeding which could be adopted. I am of opinion that the faith and honour of the British nation are pledged to the restitution of thig vessel and cargo. 553 Tlie Two Brotiikii$, September, 1813. i! •!i; t , '»! . m ^1 Ml ;j bii4 CASES DETERMINED IN THE Stpttmher SOth, 1619. Hansom whin justi'" ble miller the Prize Act, The Fanny and the Plough Boy. Sentence — Dr. Croke. npHIS in a case respecting a sum of money which has been paid into this Court, hy Captain Stack- pole, of the Statira. He states in the affidavit, that whilst he was engaged in the blockade of the Dela- ware, he fell in with and seized a vessel called the Fannij, which had sailed out of one of the blockaded ports, but not being able to spare any of his sailors to man the prize, without weakening his crew so much as to injure the service of his vessel, and being there- fore under the necessity of abandoning her, he agreed with the master to let her go upon the payment of a sum of money, which he accordingly received, and has now paid into Court. This is a direct case of ransom which has been pro- hibited by the Prize Act under a heavy penalty. It is a practice which is beneficial to the enemy, inju- rious to this country, and tends in some measure to defeat the purposes of war. It is the object of all war to compel the enemy to enter into terms of rea- son and justice, amongst other means, by seizing his property and distressing his trade. But the effects of capture directed to this object are counteracted by admitting vessels and cargoes to be ransomed—no master will ransom his vessel and cargo unless he conceives it to be for his advantage, that is, that the property is worth more than the ransom, and the dif- ference is so much gained to the enemy. It is an object of the war, likewise, to impede and destroy the enemy's commerce by depriving him of his vessels and the commodities which are the articles of trafiic. I but up( him. Whei prize an be more with the to destrc A pov abuses. the mere perhaps lay and able, un( collusion of a frau For til an impro Act, thai cargo, h( as the Cc one hum vate ship And I ap must be i duct on t an cxcepi allowed therefore circumstf within tfa Certaii tant suspi propriety would ha cned the for perfo ley which ain Stack- lavit, that the Dela- called the )lockaded sailors to 80 much in^ there* he agreed nent of a ived, and been pro- lalty. It my, inju- easure to ;ct of all IS of rea- lizing his be effects racted by imed — no jnless he that the i the dif- It is an !stroy the is vessels »f traffic^ r P COURT OF VICE-ADMIRALTY. but upon a ransom these are both again restored to The f him. When a captor therefore is unable to secure a prize and send it into port, though the ransom may be more bcncliciul to himselC it is more consistent with the policy of war and the beuefit of the country, to destroy it. A power of ransoming- is likewise subject to great abuses. Vessels may be seized contrary to law for the mere purpose of exacting a sum of money, which perhaps the master would rather pay than suffer de- lay and detention. Even when a seizure is justifi- able, under colour of the ransom, secret compromises, collusions, and clandestine restitutions might be made of a fraudulent nature. For these reasons ransoming has been considered as an improper practice ; and it is enacted by the Prize Act, that if any commander shall ransom any ship or cargo, he shall forfeit and suffer such penalty or fine as the Court shall adjudge, not exceeding the sum of one hundred pounds ; and the commander of a pri- vate ship shall likewise forfeit his letter of marque. And I apprehend that the money received for ransom must be condemned to His Majesty for such miscon- duct on the part of the captors. There is*, however, an exception, in the case of extreme necessity, to be allowed by the Court of Admiralty; and it rests tiierefore with the Court to determine whether the circumstances compose such a case as to bring it within the exception. Certainly, in this case, there is not the most dis- tant suspicions of any tjaing like connivance, or im- propriety in the conduct of the commander. It would have been highly unjustifiable to have weak- ened the crew of his vessel so as to render her less fit for performing the duties required of him in His 555 AMNY uiid 'Hie PLUVUII UoT. Seyttmher SOlii, lUl.i. •■ ' ■ i f.56 Tfie r.Ksur i>(]'ttmher W[U, ■'^eptemher 20tli, 1U19. I liin for da- inaLi'H up in lo.is ot' \ ■• cl by sliipwrfck after capture, re- jecte'l, there btiiig no mis- conduct on the part of the cap- tor). CASKS DETERMINED IN THE Majesty's service. This does in Romc mcimnrc com- pofie a case of moral nccossily, wliich I think mij^ht justify this proceeding, though perhaps not literally a case of extreme necessity. In giving this extension of the words of the act, the decisions which have been given by some other Courts of Vice- Admiralty in similar cases, which have occurred respecting other ships in the same squadron, and which were consi- dered as the rule and guide for the rest of His Ma- jesty'8 ships, and decided the conduct of Captain Slackpolc upon this occasion, have had considerable weight. I condemn this property as lawful prize to the Statira. The Roscio, J. Jose Carrac, Master. Sentence — Dr. Croke. rp'HIS vessel was taken close to the Western Islands on the 15th June, by the Dover, the Melpomene and the JRegulus being in sight, and or- dered for Halifax, under the care of a prize-master. Upon her voyage to this port, upon the 29th of June, she was cast away at one o'clock in the morning about fifteen leagues to the eastward of this port, near Paper Head harbour, and the materials of the wreck were sold by the prize-master for rf20 to a man who lived near the spot, and as a consideration for bringing him and the crew to Halifax. If this vessel had been brought into port, the Court would have to d the prop the whol of the wi sity of 11 question tors are I Todctcri the prop restitutio was a ju! cuptors a Under peculiar where th ticc, the dents: bi captor is for mi SCO It mig justiable papers fo been a ca chased fr the war, ment to | cies and reality of by the co the docur Majesty's examinati sufficient owners tl captors. But thi COURT OF VICE-ADMIRALTV. liave lo ilccid< ih« ndcinnation or rcstltutin the property, but it is an unfortunate case in which the whole property has perished, except a small part of the wreck which Wii3 disposed of, under the neces- sity of the circuniatances, for a small sum. The only question therefore which remains is, whether the cap- tors are liable to make good the loss to the claimants. To determine this question it has not to decide whether the property would have been ultimately liable to restitution to the claimants, but merely whether there was a justifiable cause of seizure, and no fault in the cu|)tors afterwards. Under the general rules of law, which are not peculiar to this country, but belong to most others, where the possession of property is founded in injus- tice, the possessor is even liable for unavoidable acci- dents: but, where there was a just cause of seizure, the ca|)tor is not answerable for mere casualties, but only for misconduct or voluntary neglect. It might at once be pronounced to have been a justiable seizure in this case, if from the state of the papers found on board the ship it appears to have been a case for further proof. This vessel was pur- chased from the enemy since the commencement of the war, but there is no bill of sale, or any one docu- ment to prove the title. There are other deficien- cies and reasonable grounds for suspicion of the reality of any transfer which have been pointed out by the counsel for the captors ; with these defects in the documents of the vessel, it was the duty of His Majesty's cruizers to seize and bring this vessel for examination, and since their omission to put on board sufficient proof of their property was the fault of the owners themselves, no blame can be imputed to the captors. But though the original cause of seizure was jus- f Thi' Rninta. Septtmber <||Uth, 1UI9. i \ 'V. 'HI ii 558 CASES DETERMINED IN THE The Roscio. September 20tb 1813. tifiable, the captors would be answerable for losses which were occasioned by their wilful misconduct or gross neglect. A fair case is stated in the prize- master's affidavit, that on the 18th, they made land ISO miles to the cast of Halifax; that they proceeded along the coast till the next day about twelve o'clock, when they fell in with the brig Alexander, just from Halifax. Being a stranger to the coast he went on board her for information, and was told by the master to steer west and by north, and that Halifax was ninety-five miles distant. Upon which he steered directly west, which was one point farther off the land, and kept that course till one o'clock, when they struck upon a reef; that an inhabitant. Gasper Clauser, furnished a vessel to transport him- self and the crew to Halifax for twenty pounds, in lieu of which he left with him the wreck of the ves- sel which was going to pieces. It appears therefore that the prize-master used every caution and prudence for the safety of the vessel which the case would admit of. This is not contradicted on the part of the claim ant, nor is any misconduct or negligence of the cap- tors alledged on bis behalf, though the master was on board the whole time, and he has stated other instances of misconduct respecting the plunder of the trunks, and an accusation of the captors having sold the materials of the wre<;k below their value. I pronounce therefore against the claim for da- mages, and direct the proceeds of so much of the wreck as may have been saved after payment of Clauser for his services, to be applied to the payment of captors' expenses.— As to the rest of the expenses, as this is an unfortunate and losing case on all sides, each party must be contented to pay their own. IE c for losses misconduct n the prize- ' made land J proceeded out twelve ' Alexander, the coast he ivas told by 1, and that LJpon which oint farther )ne o'clock, inhabitant, msport hira- pounds, in of the ves- naster used fety of the the claim of the cap- the master itated other nder of the laving sold ue. im for da- uch of the >ayment of he payment e expenses, ase on all pay their COURT OF VICE-ADMIRALTY. The Flight, Kcll^, Master. ri^ HIS was a case of joint capture, upon petition 5^9 October ICtli, 1U13. Vessels asjoci- on behalf of the Statit^n against the Spartan, alio. Illuu 'J'uJ' It is stated that the ^7rt/HY/, under the command of ^^Xi'^en.yr property,! hougli driven on sliore and bcized tliere. Hayard Sfackpole, Esq. made a part of the squadron under Sir John Borlasc Warren, which was cm- ployed in carrying on the blockade of the Chesapeake, with the Spartan commanded by Edward P. Brenton, Esq. and was associated with the blockading squa- dron, co-operating in the various services; the Statira being employed in the upper part of the bay, and the Spartan at the entrance. That the boats of the Vic- torious chased on shore a schooner called the Flight, and after she had bilged on the shore, and was wrecked, the boats of the Spartan saved from the wreck divers goods, which liad been condemned in this Court; and that the Statira was entitled to share by reason of having been associated in carryi"g on the blockade with the Spartan. An answer to this petition has been given on behalf of the Spartan, admitting the truth of the facts as there set forth. The King's Advocate argued in support of the Peti- tion, and the Sulicitor General for the Spartan.'^ Sewtence. — Dr. Crake. The statement of facts in this case is admitted on both sides. The claim of the Statira to share in thig capture is not founded upon any actual assistance rendered, or upon any constructive aid from a joint chasing, or even from being in sight, but upon the sole foundation of the two vessels having been at the tirae engaged in a conjunct service. The general rule, that vessels associated are all intitled to share in cap- H m '\ 111 m i6o CASES DETERMINED IN THE The Fm«hi'. October 16th, 1813. tiires made by any of the squadron, which ha? been fully stated by His Majesty's Advocate, has been ad- mitted by the Solicitor-general, but he alledges that in point of law they do not apply to this case, for two reasons — First, that this prize was a wreck on shore, not captured afloat, but on the territories of the enemy. Secondly, upon a late decision in the High Court of Appeals, the Nordstem, Samsing, that this vessel being an enemy's vessel, was not captured for a breach of the blockade ; that the only object of the blockade of the Chesapeake was the capture of neutral vessels, and since that was the only purpose of the association, this capture was foreign to it, and none of the associated vessels were intitled to share. The first of these objections is very slight. The transaction was commenced upon the sea, by the boats of the Victorious, which chased the vessel on shore. Being originally a marine pursuit it did not change its character by the mere circumstance that the actual seizure was made on shore. It was as much a naval prize as if the capture had been com- pleted at sea. Generally speaking, it is not usually permitted to commanders of vessels, and privateers are expressly prohibited, to seize private property on shore: but it never could be contended that it would be unlawful to take possession of the property of an enemy which they had pursued at sea, merely because they had driven it to land. So the grant of the be- nefit of prize to the captors is limited to prizes taken at sea and to public property on land, yet it could not be pretended that this circumstance would oust them of their right, from its being private property on shore. The second objection had rather more plausibility. It was laid down in the case of the Nordstem, tliat to lias been 5 been ad- :(lges that ij lor two on shore, cs of the the High , that this tured for object of apture of y purpose gn to it, ntitled to :ht. The ; by the vessel on t did not mce that t was as een corn- it usually )rivateers operty on it would rty of an f because f the be- zes taken it could uld oust property usibility. I, that io y COURT OF VICE-ADMIRALTY. intitle vessels to share as joint captors upon the sole ground of the unity of an enterprize, " it is not suffi- cient a joint enterprize should exist at the time, ex- cept it expressly refer to the capture in question, or in other words, that the capture grow out of the pur- pose and object for which the parties have been united, and be the joint produce of an actual co- operation, and the object of union." It was there- fore argued that the sole object of this blockade being the capture of neutral vessels, the capture of enemy's property was not within the object of the enterprize; and the counsel relied upon the general nature of blockades, and upon some observations which were made by this Court in the Orion. The principle laid down in the Nordstern appears to me to be new ; it seems very likely to lead to a great deal of litigation, since it may frequently be a nice point to ascertain, in particular cases, what is the object of an expedition, and how far any given cap- ture may come within it. It would often be attended with considerable hardship. Suppose a squadron was dispatched upon any expedition in its object ex- clusively military, as to follow a French fleet across the Atlantic ; if a rich merchant vessel were taken by one of the ships accidentally out of sight of the others, it would scarcely be equitable that they who were as- sociated for every purpose of sharing in the hazard, the warlike exertion, and the real danger of the expe- dition, should be excluded from partaking in such benefits as fortune should throw in their wav, with- out any hazard, exertion, or danger at all. To ad- here to the principles laid down in that case, this Court is undoubtedly bound ; but under the view which I am enabled to take of it, I should not be in- clined to extend it beyond its fair limits. I observe 2o 561 The Flioht. Octoher 16th, IBU], • ; , i - « r62 CASES DETERMINED IN THE October Itjth, The Flight, that SiF William Scott, ill the case of the Forsigheid* considers that case as adinittins^ that ships^ captured for a breach of blockade, would be the joint prize to the whole fleet employed in that service. It is ac- knowledged that this was a general and strict block- ade, as well commercial as military, and that these vessels were associated, and co-operating in carrying on the various services of the blockade, the Stntira being employed in the upper part of the bay, and the Spartan stationed at the mouth ; but it is argued that this vessel was not taken for a breach of the blockade, but as an enemy's vessel merely, which was therefore a capture unconnected with the blockade. However ingeniously this point may have been argued, it is not tenable : though the seizure of neu- tral vessels is one effect of the blockade, it is not the only or even the principal object ; it is the design of a blockade perfectly to stop up the port of an enemy, and to prevent all ingress or egress whatever, as much of the enemy's own vessels as those of neutrals. By a blockade the port is hermetically sealed, as it was strongly and metaphorically expressed by the learned Judge of the High Court of Admiralty, by a term in chemistry, when the mouth of a vessel is so perfectly stopped by welding the glass itself, that not even a particle of air can escape ; so blockading ships arc to prevent all vessels of every description from departing or going in. The observations in the opinion given by this Court in the Oi'ion, do not apply to this case. It was the foundation of the right of capture which was there spoken of, not the object of a blockade ; it was therefore observed that the right of capturing neutrals was founded merely upon the blockade itself, * 1 Edw. 124. i r 1 ■■lii '--^^.t :M COURT OF VICE-ADMIRALTY. 563 ^sigheid,* captured t prize to It is ac- ict block- [liat these J carrying le Stntira Yy and the is argued ch of the vhicli was ockade. lave been :e of neu- is not the design of m enemy, , as much rals. By as it was ic learned a term in perfectly lot even a ips arc to departing ion given this case. re which :kade; it capturing iide itself, Octohir ICtb, 1813. whilst the right of taking the enemy's vessels depended The Fmoht upon the general state of war : but it was there stated, that even with respect to the enemy, a blockade is a disposal of naval forces to render the capture of his property more easy, and it was therefore in fact ad- mitted that the capture of the enemy's vessels was an object of the blockade. I am of opinion that the capture of vessels belong- ing to the enemy was a part of the purpose for which these vessels were associated, and theiefore I admit the allegation given on behalf of the Statira, and pronounce her to have been a joint captor of this cargo. EuPHEMiA, J. M. de Marias, Master. Sentence — Dr. Croke. npHE vessel and cargo are claimed by the master for Matteo Lorenzo Murphy, of Vera Cruz, admitted to be a Spatiish subject. The cargo consists of 1 1,000 quintals of copper, and 96 quintals of Cam- peacfty wood, besides the adventures of the master and the mate. They sailed on the 27th of June from Campeachy to Jamaica, but were to touch at the Havannah to receive further instructions from the owner's agents, and by whom they were directed to proceed to Boston, as he was informed that the cop- per could not be imported into Jamaica. On the 5th of August they saile/ " om the Havannah and were taken in their passage to Boston. OcUher 16th, 1813. Unmanurac* tured copper going to a port of naval cquip- ment, contra- band. Ship re* stored witli costs and ex- penses, as being • new question. f! « t \'\ I iiii 564 CASES DETERMINED IN THE The EUPHEHIA. October I6tli, 1U13. The principal question in this case is, whether the copper is to be considered as contraband. There are no treaties, that I am aware of, now ex- isting between the Uiiited Kingdom and Spain to set- tle what shall be deemed contraband. By the decla- ration of war in 1803, all preceding treaties were an- nulled. By His Majesty's Order in Council of the 4th July 1808, it was ordered that all hostilities against Spain should cease. I am not informed that any subsequent treaties have been entered into which apply to this subject; none at all indeed appear, ex- cept mere conventions relating to the conj unct war. The relations of friendship between the two nations depend therefore upon this Order in Council. The 4th article declares " that all ships and vessels be- longing to Spain, which shall be met at sea by His Majesty's ships and cruisers, shall be treated in the same manner as the ships of states in amity with His Majesty, and shall be suffered to carry on any trade now considered by His Majesty to be lawfully carried on by neutral ships." The determination of what is contraband is left to the general law of nations. The relaxation of the general rule of contraband, that what is the native produce of the exporting counry is a rule of convention chiefly, it was ex- pressly stated in the case of the Stadt Embden*, on the authority of the Med Goods Hielp, not to be a general principle ; and has chiefly been admitted by express treaty, and in favour of the northern states of Europe, most of whose native commodities are of a contraband nature. The general principle upon which questions of contraband depend are clear, the only difficulty con- sists in the application to particular cases. To supply * 1 7?o6. 129. i 'fl *9 COURT OF VICE-ADMIRALTY. the enemy with implements of war is universally a de- parture from neutrality ; what commodities shall be considered as coming within that description, has been much contested between nations at war, and those which have continued in peace. Arms and some other articles of direct use in warfare have been allowed to be contraband without dispute; it is another class of commodities, which have their use as much in the or- dinary commerce of peace as in the affairs of war, which have been the subject of contention. Of this kind are all metals, including that which is now under the con- sideration of this Court. Respecting such articles, the rule laid down by Grotius, which is founded in justice and good sense, has been looked up to as the safe guide of decision, destinguendus belli status. The situation and means of the belligerent countries, and the course of any given war, and the objects of attack and defence, will clearly point out the hostile wants of each party, and the articles by which he may be assisted in opposing his enemy, or defending him- self; the articles therefore which compose the list of contraband, must vary from time to time with the changes and revolutions of nations, in their territories, their manners and pursuits, and, above all, in the science of war. When from those charges, an article which before was innocent, becomes of great use in war, it immediately is clothed with the character of contraband. The principle continues immoveable^ but the variation of circumstances may bring new ar- ticles within the range of its application. Whatever becomes of military use to an enemy, becomes imme- diately contraband. The invention of gunpowder added a vast accumulation to the catalogue. In more modern days, when wars have assumed a naval cha- racter, articles decidedly of use in military naval equipmentj after some opposition from interested neu- i6a The EtipiIEMIA. October 16th, 1813. 666 CASES DETERMINED IN THE The FuniikMiA, Ociiihrr 16th, trals, are universally admitted to be contraband. 4n improvement has been lately made in the mode of buildinp; ships by sheathing them with copper; it can searcely therefore be disputed thiit copper, which is now a regular naval sfore in all public arsenals for building ships of war, is become of a contraband na- ture ; indeed it appears to have been so even befoi« it was applied to that use, and is enumerated auHuii^st contraband articles in several treaties and public do- cuments, such as in the treaty between Englmid and Holland in 1G25, the King's proclamation against Spain in 1625, and many others. The contraband quality of this article cannot be doubted, though no decided case is found respecting it upon the general law of nations ; that of the 67;rtr- lotte, Fochs, arose upon the construction of the Swedish treaty : it came indeed before this Court in the case of the Express, Uaskett, but was not fully considered, as there was ground to condemn the vessel for breach of blockade. Copper in every state and in every form may be ap- plied to innocent as well as to noxious purposes ; even in plates and bolts for sheathing, it is as much appli- cable to merchant vessels as to those of war, and in its rudest state it is a material which may easily be converted to hostile purposes ; it is materia per se hello apta. We must look farther therefore than to the mere state of the metal before it can be pronounced contraband or otherwise. In the case of the the Dc Hoop, Witzes, decided in the High Court of Admiralty 14th of July, 1801, but not reported in Rohinson's and was produced under an affidavit in Court, under Reports ; steel of which a sword had been made, the circumstances of the case was pronounced not to be contraband. Referring back therefore to the rule of Grotiiis, we may lay it down as a general principle, COURT 01' VICE-ADMlllALTY. that whenever there is a moral certuiiily, or a strong legal presumption, that a cargo, or part of a cargo, of this article, is intended to be applied to naval mili- tary purposes, it is then contraband, and not other- wise. Thus, if a cargo of copper in sheets and bolts was going to a port where ships of war were built and refitted, this presumption would be suflicient to con- demn it. In the present state of America, which claims to be a naval power with whom all mercantile navigation is now prohibited, when all vessels which are capable are converted into privateers and are iitting out, as well as public ships, along the whole extent of the coast, every port in the United States must be considered as a port of naval military equipment, and every article of ship building to be of a hostile cha- racter. Besides, at Charkstoxvn, near Boston, the destination of this vessel, there is a regular public yard for building of ships of war. The exemption of raw materials is rather an indul- gence than of strict right ; it is not universal. Hemp is a raw material in its lowest state, and must be made into cordage, ropes, and then cables, before it can be applied to rigging and other naval uses. Sul- phur, nitre, pitch, and tar are raw materials. In some treaties, as in that between Spain and the Em- peror, in 1725, all things useful in war, manufactured or unmanufactured, are declared to be contraband. It is on account of there being a greater or equal probability of an innocent than of a noxious applica- tion, that raw materials have generally been exempted from the penalty of contraband. The more remote the state of the article from the form in which it could be applied to military purposes, the less was the presump- tion of an intention of such application ; but I appre- hend that this is principally a rule of evidence, not ia 667 The October l(U)ii 1U13. a6« CASES DETERMINED IN THE Tlie EUFHRMIA. Oeeobtr t6tli, 1813. all cases of positive and inevitable conclusion, and niust give way, espcciallv where there are no decisions to the contrary, to more direct proof. Suppose a cargo of iron in its rudest state was going direct to a cannon-foundery of tlie enemy, professedly to be cast into guns and cannon-balls ; I apprehend that it ■would be liable to confiscation, unless the provision of a treaty intervene. If then, from the facts which appear, there is any reason to believe that the unmanufactured article would be manufactured, and applied to hostile pur- poses, we should not hesitate in pronouncing it con- traband. The most innocent commodities, even pro- visions, under these circumstances are contraband. Though copper may be said to be of promiscuous use, it is not so much so as iron, in whose favour this rule has been principally introduced ; for one article of common life which is made of -copper, there are one hundred formed of iron ; for one coppersmith, blacksmiths innumerable are to be found in every country. But for naval purposes a very large quan- tity of copper is used ; there is therefore a greater general probability that copper will be employed for naval uses, than there is with respect to iron. This probability is encreased when the state of the war renders it an article of great importance to the enemy in preparing his military operations, as in the case of the United States, which profess to be a ma- ritime power, equally bent upon increasing their navy, and upon contesting the palm of glory with Great Britain upon her own element: to such a nation copper is an article of the first importance ; the du- ration of their ships, the length of their expedi- tions, the swiftness of their vessels, their facility of attack, defence, and flight, depend upon a supply of it. f :•■ It is n( tide in I tories su building, no mines difliciilt manufaci Sweden, is express lain. N of confisc cossity ol they have for every not the m object wj preparatii they can another. By the pointed t copper in from the Icable, bi leable am any other double fu tried, anc were mad that after manner, a leable. I state is n yard at P the purpo is large, ii COURT OF VICE-ADMIRALTY. It is notorious that there is a great want of this ar- tich; in the United S'tntes. Whilst their own terri- tories supply almost every other material for ship- building, copper cannot be procured there ; they have no niiuos, or at least none are worked. It would be difliciilt if not impossible for them to procure it manufactured for the immediate use of their navij. Sweden, the country which deals most largely in it, is expressly prohibited by its treaty with Great Bri- tain. No other nation can import it without danger of confiscation. They are reduced therefore to the ne- cessity of importing the unmanufactured material ; they have founderics where it can be manufactured for every use which they can require. If they had not the means of manufacturing it generally, for what object was it imported at all, since without further preparation it would be useless for any purpose ? If they can manufacture it for one purpose, they can for another. By the report of the gentlemen who have been ap- pointed to examine this article, it appears to be copper in the first rude state in which it is first fused from the ore ; that in its present state it is not mal- leable, but that it might be rendered perfectly mal- leable and fit for rolling into sheathing copper, or any other naval purpose, by the easy process of a double fusion ; that the experiment has actually been tried, and it appeared that by once melting, bolts were made which were malleable in some degree, and that after a second melting, in a rude and unscientific manner, a bar was found which was perfectly mal- leable. It appears likewise that copper in the same state is received as a naval store in the King's naval yard at Portsmouth, where it is manufactured for all the purposes of naval equipment. The quantity too is large, it consists of 1 1,000 quintals, and the prime 559 The Kuril 1.MIA. Octoher Ifllh, 1013. 570 COLIiri' Ol' V'ICE-ADMIRALTV. EurHIMIA. Oc0btr I61I1, lUi3. cost was 18,97(} dollars. It has been statrd to be sufficient for sheathiiijr a first rate man of war. and that a vessel of the line is now actually building at Charles Town near Boston. I am of opinion therefore that under all the cir- cumstances of the present war with the UniUri Stntift, copper in its unmanufactured state must be considered as contraband, but as this is in some measure a new question, and the claimant nmy have been misled in- voluntarily, and without any intention of vioiatinj; the law of nations, from a general understaiidirjg Uiat raw materials arc not comprehended in the class of contraband, 1 condemn the cargo, but direct the vessel to be restored to the owner, together with his costs and expences, as was done ia the case ot the Jonge Margarctha. Rob. 1. 196. Copper con. traband. Ship and cargo br- longingto other persons rci- tored. Freight and expencei allowed to the neutral master. ©««• 16.1813 The Jerusalem, Panagcas Cacori. ^T^HIS was a Greek ship belonging to Lazaro Ni- ■'- cholas Catarai of Idra, in the Morca, and claim- ed by Nicolas Ciditeras, the supercargo. She was taken on a voage from the Havauna to Boston, with a cargo belonging to different persons on freight. A question arose with respect to some copper in bars, which was claimed for Mr. Drake of the Ha- vanna. Sentence. It is admitted that the copper is of fhe same qua- lity with that in the Euphemia. It k therefore lia- ble to be condemned. It composes, however, but a small part of the cargo, and is under the same general favourable circumstances with the Euphemia. i j1 COURT OF VICE-ADMIUALTV. In the JNeptums Lamp, in 3 Rob. 108, under similar circumstances, the liif,'h Court of Admiralty de- creed the master his freight and expencc8, a prece- dent which I think it proper to follow upon the pre- sent occasion. 571 JtRtJ<4M?>r. Oc(. 10, luiS. ' J The Repuhlican, Bcaupin. Sentence.— X)r. Croke. f^r^fllS vessel and cargo sailed from AW York upon -*- the JUh ofJnfi/ last, and were captured upon the 11th. In this and several other cases, which depend upon the question of the blockade of that port, fur- ther proof was directed to be brought both by the captors and claimants upon that point, and which has now been produced. This is a mere cpiestion of fact, whether the port of Mew York was actually blockaded, with a suffi- cient notification to the parties, to be chari^ed with It, at the respective periods which can affect this vessel. These are, the time of sailing, and the time of loading. We have therefore to ascertain when the notifica- tion was given, and when the blockade dc facto really commenced. As to the notification, on the 20th of March, the Prince Regent published the Order in Council for the blockade of this port. In that onler it was stated, that notice of the blockade had already been given to the ministers of neutral powers residing in London; but, independent of those specific commu- nications, the order itself, published in the official Gazette of the British government, was in itself a general notification. It was the duty of the govern- ments of the respective neutral countries, and their iVotf. T>, ItlS. Tlu'hiorliade of N>w \ iirk romnn'ii(ceriod, and therefore before the blockade comnclusive than what was before stated. There are atlidaviis from several masters of 2 P f 678 Tlie REPtUIICAN. Kov. 3, 1813. CASES DETEIiMINED IN THE vessels, tliat they had been stopped by the families, and other ships of that squadron, and afterwards suffered to proceed upon voyages, both out from I^ew York, and upon their return to that port at dif- ferent periods, from March to the 6th of June. If, therefore, some of the captains upon that station took upon tliemselves to capture neutrals without orders from their connnanding officers, and without the concurrence of the other vessels employed upon the same service, though upon the authority of the Prince's order, it could not constitute a blockade, but it must be classed aniongst those irregular pro- ceedings which cannot produce any legal effect. We are brought therefore to another conclusion, that the blockade did not exist prior to t/ie period before assigned, namehj the 22c? of June ; and there- fore, if the whole of the cargo had been taken in be- fore that time, the claimants are entitled to restitu- tion: there can have been no intermediate state between a blockade and no blockade. The master has sworn in his affidavit upon further proof, for he says nothing upon that subject in his examination, that he commenced loading on the 5th of June, and ended on the 30th. It is therefore ad- mitted, that a part of the lading was taken in after the blockade commenced. Of the time stated, a third part was subsequent lo the blockade. If indeed nearly the whole of the lading had been taken on board before, and only a few articles, or a small part, after the blockade commenced, the court would not be disposed to enforce the general rule so rigidly as to inflict the penalty of confisca- tion. If that had been the case, the master would no doubt, have been very ready to state such excul- patory circumstances, but as he has not done so, and we are left entirely in the dark, as to the time I f COURT OF VICE-ADMIRALTY. 579 when t!ie princi|)al part of the cargo was shipped ; it is not unreasonable to suppose that a very oonsi- denihle part at least, was put on board after the blockafle cnmineiiced. Since !h«Mi this vessel took on board a part of her car.'o, an. I saih-d f oin the port of i\V«; York, durin;; th;; blockade, and. with sufficient notification, 1 ivu bound by every ruje of law to prououuce for the coiidenmation of ship and cargo. REPDBtKAN* Aoo. 3, 1819. The Active, Alberg, Sentence Dr. Crohe. npiJIS ship was captured upon a voyage from -■- Slockholm io Boston, with a cargo consisting, besides some other articles, of 12,840 bais, and bundles of iron, of the weight of about IV.O tons. Consent has been given for the restitution of the vessel, and the cargo is proceede(» against iipon two grounds, that the iron, being destined to Boston a port of naval equipment, is contraband ; and that the cargo is not owned by the neutral shippers, but by the consignees in the enemy's country. To prove the iron to be contraband, the captor's counsel has relied upon the case of the Ilingonde, Jacob* from whence it has been inferred that even in Swedish vessels iron may be contraband, since in that case it was referred to the inspection of the officers of the King's yards to determine whether it was a naval store. There are some material dis- tinctions between that case and the present. Them though the vessel was under the Swedish flag, th« * 1 Rob. 89. 2 A> ^ Nee, 3, 181% tmn nnrter tlit Su.;Jish treuty noi contra- b.inil, tlittiigh acstiiicd to a purl or' imvul fqiiipment. A carto totally dcsritiitf (if proof of pro. \ttty, and without any dir rcctiiiiis, not allowt'il to go to furtUer proof. M i'iii eso CASES DETERMINED IN THE The Active. Nn. 3, 1819. iron was clainjed for Russian mercliants. Here both belongs to Swedish subjects. That was a cap- ture made in the year 1798, when the treaty of 1G61 was the only subsisting treaty between the two countries, in which no mention is made of that article, but it is left to the general law of contraband. Since that period two treaties have been made, in which are articles relating to this subject; that of 1801, by which Sweden acceded to the Russian con- vention, and that of 1803. In the latter, manufac- tured articles immediately serving for the equip- ment of ships of war only are declared to be con- traban»l ; iron in bars, and steel, are excepted even from the right of bringing in for purchase, and it is agreed that they shall not be liable to confiscation, or pre-emption. There is no limitation made in this treaty that the iron should not be bound to a port of naval equipment, nor can this court iutro* duce such an exception, where the words of the treaty are as general as possible ; particularly since this treaty appears to have been entered into with the view of regulating all questions of contraband, with a country of uhich this commodity is the most valuable produce, to which therefore the contract- ing powers must have directed their peculiar at- tention, and all fair grounds of excepticii from the general rule must have been maturely considered. It is required that a cargo consigned to the ene- my's country should be fully documented ; this case is remarkably deficient. By the bill of lading, the goods are shipped by Erskine and Co. and con- signed to Timotht/ Williams at Boston, but no ac- count and risk are stated. There is no invoice. In the charter party there is no intimation of her owner- ship. The letters are equally silent. The only public document is a certificate from COURT OF VICE-ADMIRALTY. the burgomasters of Stockholm, tliat Ertkine and Company had personally appeared before them, in what form is not stated, and had sworn that they had caused this cargo to be shipped for Swedish account and risk, confornialil)' to the bill of lading, which does not express any account and risk. It has been argued that this passport, though not pre- cisely in the same words, is in substance the same risk the form |)rf scribed in the Swedish tn aty. But it differs very mat« rially, in that the name of the owner is not specified. There is nola single paper, therefore, either private, or from the Stvedish go- vernment, which states this cargo to be the property of the claimants, and consequently no oath of the party to his property. This alone would make it a case for further proof. If we look at the evidence of the witnesses it amounts to little more. The master swears that he believes Erskine and Company are the owners of the cargo, because they hired the vessel, and put a cargo on board, and gave him a letter to a merchant at Hoston, who was to receive the cargo and sell it for their benefit. The reasons which he assigns for his belief, except the last, of which he might not be fully informed, are not sufficient to support his con- clusion. They are perfectly consistent with the ownership of any other person. This case being thus utterly defective in proof to intitle the parties to the privilege of l)ringing further evidence, it must be consistent in other respects with probability, and bear the raarku of fairness and truth. Erskine, in his letter to Williams, says that they had not come to a decision respecting the reiura cargo which Captain A/berg was to bring back, and speaks of it as if he was under aa eu^ageiiient to 691 The Active. IVm. 3, 1815. i ■ [ s i ! ^ • ! 582 CASES DETERMINED JN THE Tlie Active. Ao». 3, 18U. bring back a cargo. Yet by the Charter party, tli« contract ended npon th«j delivery df tlie i-oods at Boston, and the instriictioiiR to \\\c ina-t.?r tVoni liie ship owners are conformaMe to this aj;reen em. \ r they direct him to h)ok out for a f.ei}r..l liark. hi Erskints letter of the (itli of i\Ja\, he stan-s li.at the cargo was to be stiit hy the Belsy, Caplji.-ii Albcrg, instead of the Active, though he appears t,s tlie Chaiterer of that vessel in April. These ern>is in the name of the vess( I, and of the terms of the charter-party, are a little extraordinary, if ErsLme and Company, were the real parties in this ship- nient, and had not nieiely lent their names to it. But there is another part of this case more incon- sistent with a real transaction. h\ the last letter from the shippers, they refer the coi;sigiie(" for fur- ther instrnctions respecting the return cargo to a letter which they were to write to the niaster at Long'hope. No such letter was sent. The master deposes that the merchant in Boston was to have received the cargo and sold il, and to have shipped in return what he might judge proper under the in- siructions from the shipper. No such instrnctions were given, and there was no invoice to ascertain the original cost of the goods. So that the con- signee had no directions whatever from the alledged owner of this cargo by any documents, or through the njastcr, either as to the sale, on the price of the outward shipments, or as to the disposal of the proceeds, whether to be remitted, or to be invested in a return cargo, and in what articles. This is not a mere omission of forms. The dis- posal of the cargo is the very essence of the trans- action, as far as the owner is concerned. Where themost important part of the business is totally omitted, we must couclude that what appears upon COURT OF VICi:-ADMIRALTY. the mere face of the case is not the real state of the facts. Ilia hona fide case those ilin'ctiuiis couUI not have heeii omitted. 'J'akiiig these cin-iiinstaiices therefore into con- sideration, which strongly point ont this to he a fraudulent case; and rerfrtinj^to the perfect naked- ness of it as to any thin;^; hkc proof ol pi(»p(;rty, and tliat the atk'd^ed owners have not even {^'oue so far as to dechiiH;, without an oath, that this property belongs to them, J am of opinion that the claim- ants are not intitled to farther proof, and 1 con- demn this cargo. 583 Tlip AerivK. iVuv.a, 1U13. The Schooner Hiram, Orwte, Master. rwlJlIS was a case of objections to the Ue^istrar's -*- and Marshal's charges upon the following pe- tition oi' Johti Dovgan, Esq. In the case of the Schooner Hiram, Orme, Master. Nova Scotia, Court of Vice-Admiralty. To the Honourable and Worshipful Alexander Croke, LL. D. Judge and Commissary of said court. The petition of John Dotigan, Esq. agent to the commissioners appointed for the pare and manage- ment of American property condemned as droits of His Majesty. Humbly sheweth. That your petitioner has received from the re- gistry of this worshipful court the accounts of all the costs, charges, and expences incurred in the Nov. 5, 181.T Rii'i'triir cn- lilU'il lo .•■> per ctiil. upon (he fCI'lISS itIIKHIIlt or' hII iiiiMiry p.ufi intc !lic n j;i.sti\ ; iiiar- sImI iititit'il lo st'vtii mill six- piiiif .i iVir tlif custody of \V •;i \ ' ,r 584 CASES DETERMINED IN THE "^''HnuM!""" ^^^^ ^^ *^^ 8cl)oonor mmm, and cargo, Avl.ich 7, wore coiidoinnnd to ins iViajtsty, ami inmii exjimiii- •^'P. 0, 1813. I . . . ' 111^' such iU'coiiiits, your p' NU(>nt!r rorKviders il his duty to britift- to tlie ronsi'l«;:iriou of the courJ, the following charges made ognmst said property. First, V our petitioner obji'cts to ihe right of the registrars to chaijjfe a coniiuisKioii of five per cent, on the specie found on board of tlii^ vesNel, and deposited by the registrar, fnirsiiaiit to the order of court, ill the hands of the e<*innii!;sary-geueral. Second. Your petitifiner objecis to the ri^dit of the registrar to charge a coinuiission of five per cent, on the proceeds of the cor-^o of said vessel, sold by order of the court, and paid over to your petitioner. Third. That the specie paid to the commissary- general, as aforesaid, in this case, amounted to five thoiisutid jiouiids, current money of the pro- vince oi' Norn >coiia, which, in consequence of the discount of eighieen per cent, on bills of excliange, produced bills of exchange to the amount of live thousand nine hundred pounds currency, on which sum the registrar has charged a commission, in- stead of charging it on the first sum, which was the amount of t!ie specie actually paid in. Fourth. That the registrar has charged a com- mission on one hundred and sixty-six pounds, fourteen shill'iigs and sevenpence, currency, being the gross amount of the proceeds of the cai'^o of said vessel, instead of lirst deducting his own charges, and the costs and expences incurred thereon. Your petitioner further begs leave to state to your worship, that the marshal, in this case, has charged for two hundred and eighty-eight days custody of the FcsseJ, at the rate of seven shillings and six- pence p( pounds. Your I ship to t[ your com ing the p and prop An|)port of ttie charges objected to were persojis of uninifieoch- able integrity, and, if the\ had no right m law to what they were claiming, have erred from a cen- seiousnesf* that they were entitled to ihose perjjui- sites wliich tlu) peliticne»' eoueeived it his tturv \.o oppose. The King's advocate then p>oeeeae(. to sii['portthe lesptcuve objections cosiiaiotd in ih> petition, which being fuiiy statCvi and considered in the sentence, it would be unneces.-*ary to niake anv further detail of them. The Soiicitor-Genend, for the registrar and marshal ,3 I ' if lit I m 80 CASES DETERMINED IN THE Km. 3, 1813. '^\i^T" contended, that the charges in question were such as were fully warranted upon every ground of jus- tice, practice, and precedent. That the conduct of the petitioners, in his mode of oj)posing them, had been candid and liberal, so that the questions for the consideration of the court must arise out of its antient practice in cases similar to the present, and not from any contention respecting the reasonable- ness or extravagance of the charges. The two gen- tlemen who are acting in their respective stations are men of the most unblemished conduct in public or private life, and would feel distressed at the most distant insinuation, that they were seeking per- quisites of office upon illegal grounds or improper pretences. The antient fee table of this court, since the court's first existence, has been their scale of charge, and their commissions and fees have not I only originated in that table, but have been con- firmed by the decisions of this court, and the De- crees of the High Court of Appeals upon the very points of objection now under discussion. The marshal's charge of custody, considering the worry and responsibility attached to this part of his office, should rather be increased, if justice were done him, than diminished, and the multifarious duties of the registrar would be pitifully rewarded if the commission now opposed were deducted from his profits, or decreased in its amount in any case whatever. That gentleman keeps up an expensive establishment of clerks, at a hazardous rate, arising from the uncertainty of business and the adventi- tious profit that attends it. The commissions in question are his chief and almost only perquisites; the rest of his fees are the slender reward of the labour of himself and his clerks at the registry and iu courts. Under these circumstances, therefore, if there v prartice tr thihy: itseil and justify sent case I upon the can anv di the servict which he hiai to the of the hi'st and has \n now per for strictest al most scru| relates to charge by rections ol The So the object] but as hii ably discu ferred to i Sente Though droits of 1 that accoii in the us brought f< and libera to the offi their fair < titioner, o principles jesty and COURT OF VICE-ADMIRALTY. 587 if tliere were no precedent for tlie cliarge, and no The Schooner .-. -.1 ... ,., H RAM. prartire to support it, the reason and justice of the ——__—. thiiiy: itself would entitle the registrar to demand it ^'^'' *• ^^^•'' and justify the court in coniirnrmg it. In the pre- sent case his right to it is as strong as in any other, upon the score of trouhle and responsibility: nor can anv distinction be shewn between the nature of the st^rvicf ivndered bv him in the Hiram, and that which he has performed in any other case, entitling him to the oomiiiission in question. It is an office of the hrst imporianceand the highest responsibility, and has been fillevl for many years by the gentleman now performing the duties of it at Halifax with the strictest attention to its pecuniary concerns, and the most scrupidons integrity in every transaction that relates to the disposal of monies entrusted to his charge by the orders of the court, or under the di- rections of the Bye Act. The Solicitor-General then replied seriatim to the objections taken on the part of the petitioners, but as his observations upon every point are so ably discussed in the judgment, the reader is re- ferred to it. Sentence.— Dr. Croke. Though this is an application which concerns the droits of the court, no prerogative is claimed on that account, but the questions must be decided as in the usual cases of subjects. They have been brought forward and argued with great candour and liberality. No motives of any injury intended to the officers of tlie court, or of depriving them of their fair emolummts, can be attributed to the pe- titioner, or that he has been actuated by any other principles than that of doing his duty to his Ma- jesty and thoise by whom he i» employed. ,i ;i: M i'' III 58^ The Schooner iVof. 5, 1813. In CASES DETERMINED IN THE It is Ihe business of this court to tax all bills that arc presented to it, ikn L ating, and occasionally very small, though many of Thr s. their expences are perpetual. There is likenise a very heavy responsibility for property to an im- mense amount which attaches upon ti.em- No persons who are fit for such offices can be expected to quit ot!)er profitable occupations, and to dedicate their time and labour to these, without a prospect of fair and even handsome emolument. I do not know that in any instance the fees are higher thaa what are usually and voluntarily paid and received by merchants for the performance of business, and for incurring a responsibility of a similar nature. Besides, most of the heavy expences are incurred by the voluntary choice of parties themselves. By the law of the court every cause is to be heard and decided upon on the return of the monition, that is io twenty days from the vessel's being brought into port; all delay beyond that time is the fault of the suitors themselves, for each party has the power of compelling his adversary to proceed to trial under paio of making compensation for the delay. When heard and determined at the regular time, the ex^ pences are very trifling. In cases which require more delay, of further proof, and upon appeals, the parties are intitled to take the property upon bail. Sales, deposits m the registry, and every proceeding upon which a poundage is charged, may in every case be avoided, unless a party chooses so to pro- ceed. After these general observations, in answer to such popular clamours as are not unfrequently raised against Courts of Admiralty, :md which have been alluded to upon the present occasion, I proceed to the petition itself. As far as the registrar is concerned, it consists of four arti,d% two of tiiem relutu to the sums charged, booner A>1. y.\ 1 ! !!' n 090 CASES DETERMINED IN THE Wo». 5, 1813. ''"'h.^o*''.'!""" the other two to the sums upon wliich tlip diarfrn is ml IRAN* ' ■T''* to be made. The ol)jtctioii of the lirst kiml is t) a charj^e of 5 per coiit. claimed by the rej;istnir upon specie found on board Ihe vessels, and (l( posited iti the registry, and afterwards paid over piivsuaiii to the order of the court into the hands of tlie Coniniis- sary-General; and the other to the same (;()Miniissi()ii on the proceeds of the other parts of I lie cargo which were soJd, by order of the court, by the mar- shal, und( r the usual commission, to return the proceeds into the registry, and which after they were so returned were paid over to the petitioner. As these two objections are of a similar nature, [ f-liail consider them together, adverting afterwards to any difference which may appear between them. In th<3 year 1801, by the statute 41 Geo. ill. chap. 96, a power was given to his JVI ajesty to re- jjidate the fees to be taken in the Court of Vice-Ad- iiiiialty, and it was tlie intention of his Majesty's go- vernment that new fee-tables should be made. J was directed to transmit a statement of the fees which were taken in this court, which I accordingly did. Amongst these was the fee now disputed, of 5 per cent, claimed by the registrar. No objection was made to that charge, nor was any new table of fees established. It may therefore be considered as having had the tacit approbation of his Majesty. In the year 180(5, this commission was directly brought before the Lords of Appeal, in the case of the Charlotte Gree?i/icld, upon a monition against the present registrar, Mr. 3Jorris, to refund the sums which he had received under it in that case; after the Lords had heard the argument in the case, and the attestations, and exhibits on both sides, they dismissed Mr. Morris from the nionition, and there" i>y pronounced for the lawfulness of the charge, I', I ;' t It haiti money u ed had b who had pence on like the But upon that casj that disti In the this char the subje ton, the was still any orde land, am For in h "the foi charges c trar, as 1 mises." In the the Lord must be { deuce pn in the cat commissi in all casi any distin One o lished by iransmitt founded i this artici demnatio for custoG COURT OF VICE-ADMIRALTY. 591 p charfje is iinl Is tv) a strar ii|ion posited ill iivsiiant to ^ Coiiimis- iinitiissioii the cargo ^ tlie nifir- eturn the they were jner. As lie, [ shall rds to any in. Geo. JII. esty to re- Vice-Ad- jesty's go- iDade. I r the fees cordingly ipiited, of objection V table of ideied as ijesty. i directly le case of 1 against fund the lat case; the case, des, they nd there* arge, It has however been said that in that case tlie The Schooner Hiram. I I. f- money npon which the commission had been charg ed had been remitted by the registrar to Etigland, who had therefore been subject to a risk and ex- pence on that account, which did not apply to cases like the present, where the money was paid iiere. But upon looking into the printed proceedings in that case, there does not seem to be any room for that distinction. In the first place, the settlement itself, in which this €hf»rge of commission appeared, and which was the subject of complaint, was allowed by Mr. Bren- ton, the then judge of the court, whilst the money was still in the hands of the registrar, and before any order was given to transmit the money to Eng- land, and which therefore was merely contingent. For in his note, at the bottom of it, he states, that " the foregoing sum (namely the balance after all charges deducted) remains to be paid by the regis- trar, as the court ma^ see Jit to direct in the pre- mises." In the next place, though it does not appear that the Lord^ gave any reasons for their judgment, it must be presumed to have been formed upon the evi- dence produced before them. Now all the evidence in the case goes the full length of proving that this commission was the old and customary allowance, in all cases of money paid into the registry, without any distinction as to its subsequent disposal. One of these evidences was a table of fees pub- lished by the Judge of the Admiralty, in 1771, and transmitted home to government, and which was founded upon a more ancient table, in which was this article : " for all money paid into court, for con- demnation or otherwise, five per cent, to the registrar lor custodif of the money." It appears, therefore, Nov. 3, 1813. ::' 699 CASES DETERMINED IN THE '^''hira^°"" that this poundage was allowed and attached upon A'w. 5, iai3. the pa t/mcHt of' the muncif iuio the registry, wliatevei was the ultimate disposal »-f it, and was in conside- ration of the custody, and other troubles which niight be necessary in relation to it, There is a certificate from myself, that I had in- spected all the records of the court, from the first establishment thereof in 1749, and that it appeared that a poundage of five per cent, had been the fee allowed the registrar for all monies paid into the re- gistry, for receiving mid paying money by order of court, making settlements, ^c. SfC. There are certificates to the same effect from Mr, Bloions, the present chief justice oi Nova Scotia, Vii^ to the same allowances during the time he was At- torney General, " on monies paid into the regis- trar's hanJ.s ; ' other,^ frum the present Attorney and Solicitor General; from Mr. Binney, and vations other peisous conversant in this court. They ail speak, of the fee as due for money paid into the re- gistry, without an) allusion to the mode in whicfj it was to be paid out again. To this point then all the evidence produced was conclusive, and it must therefore be understood, that the decision of the Court of Appeals has fully esia blished the right of this per centage upon all money paid into the registry, whether afterwards paid over immediately to the agents or other persons intitled to it, or remitted to Unqland; or whether such mo- ney shall have been found on board a vessel, or shall be the proceeds of sales. The other two objections are against the sums upon which the commission is charged, " tiiat the specie paid to the Commissary General, amounted to ti^e thousand pounds, which in consequence of the discount of eighteen per cent, on bills of ex [^hed upon ', whatever in coiiHicle- hichiiiiyht ; I had in- •ni the Hrst it appeared 3en the fee hilo ihe re- bif order of ; S !tfrom Mr, 1. Scotia, as Ue was At- the regis- torney and nd vario'.is Tliey all ; into the re~ | in which it f; Juced was stood, that I fullv esla I all money s paid over ns intitled r such ino- lel, or shall ; the simis ♦' that the ainotintetl equence of Oills of eX" ^ COURT OF VICE-ADMIRALTY. change, produced bills of exchange to the amount of five thousand nine hundred poiuids, on which sum the registrar has charged a commission, instead of charging it on the first sum which was the amount of the specie actually paid in." This is evidently an improper mode of taking the poundage. Jf, as I iiave before stated, the fee ac- crues upon the payment of the money into the regis- try, it is at that time, and upon the sum actually paid in, that the poundages ouglit to be assessed ; besides, the difference between the money itself and the bills of exchange, which were received by the registrar in lieu of it, and afterwards paid over to the agent, is merely nominal. Those bills were really worth no more than the specie which was paid for them, and if carried to market, would have produced no more. The difference therefore being only ideal, the registrar can liave no claim to receive a real pro- fit upon it. The next article is, that the registrar has charged a commission on the gross amount of the proceeds, instead of first deducting his own charges, and the costs and expences incurred thereon. The propriety of this mode of charging the com- mission must depend in a great measure upon the established usage. An examination of the bills of costs in the registry will shew that it has ever been the practice to charge the commission in this manner. The principles already laid down will prove that it is not unfair or unreasonable. It has always been charged upon sums actually paid in, which in case of sales, are the gross proceeds, as they are received from the Marshal, who previously deducts his own commission, because the poundage attaches upon all the money. Upon being paid in, however, it may be 2 Q 59S Tlie Scliooncr IIlR\W. 2Voc. .s 1Ci;J. J: W I £94 Tlir Sdmoner HlHAM. Nov. 5, Itilj. CASES DETERMINED IN THE disposed of afterwards. The registrar has tliocustodv and tlie respoiisiibility of the whole gross proceeds, which are the grounds of the allowance; his own commission and charges, and those of all other per- sons, except the marshal's poundage, are not paid and allowed till the conclusion of the cause and the final settlement, when the registrar pays over the whole money which has been deposited with hini; till then he has merely the custody and responsibility for the whole. The petition then objects to the charge made by the marshal for the custody of the vessel, at the rate of seven shillings and six-pence per day. This claim rests upon nearly the same grounds with the registrars poundage. Upon my arrival liere I found it to have been the long established charge. In 1800, upon some disputes relating to fees, a reference had been made to His Majesty's council for this province. This allowance, with that of five shillings a day besides, to a person employed when it was necessary, was inserted in a fee table by them formed. Without entering into any ques- tion of how far this table is of legal authority, it may be considered as a proof, that this was considered as the established charge, and that it was rt:asonable in itself;_iudeed, when the great trouble and atten- tion which this part of the marshal's duty requires to be constantly employed, in the safe stationing of vessels; in guarding against accident and embezzle- inent, and his being answejable for all the losses which njay be occasioned through the neglect or im- proper conduct of those whom ke must necessarily employ ; when all these circumstances are weighed, a daily pay for each vessel, equal only to that of a moderate artiiiccr in this town, cannot surety be : h: (:- £■■ COURT OF VlCE-ADMIllALTV. 695 tl»: iiied an exorbitant demand. It was retnrned by The Scimonrr mt; to i-overnnicnt in the table transmitted, and was ,. "'"*"' . not objected to. About the .same time with the case ^'"- ''' '"*''• of the Charlollc, Greenjield, that of the Lijdkt, Ker- 9\soH, came before the Lords of Appeal, in wliich the charges of the marshal of this conrt were ob- jected to, but were confirmed as those of the regis- trar were in the other. The poundage, in case of sale, 'hideed was the principal i^roimd of objetlion, which is not complained of in tiie present case, but in the marshal's accounts in the Lydia, there was a charge for custody for 82 days, at seven shillings and six-pence a day, and for a person bes" %>s for atten- dance on board the said ship for the ^ ne time, at five shillings a day, which does not appear to have been objected to by the complainant, and was con- firmed by the court. In the year J 808, this very charge amongst others, was resisted by an age!)t ibr the captors; it was brought before this court aiid fully argued. Upon tlie grounds before stated, it was again pronounced to be lawfully due. Since then the registrar's right to a |)oundn;;e of five per cent, upon all money paid into the regi^Hlry, and the marshal's charge of seven shillings and six- pence a day for the custody of vessels asjd cargoes, have been fully established by the decision., of the courts of appeals, and, in the latter case, of this court likewise. 1 cannot but hold them to be just and law- ful fees, which it is no longer competent to tiiis court to alter • and since it apj)ears to have been the cns- tomai y and reasonable practice of the court to al- low the registrar's poundage upon the gross sum paid into the registry, 1 pronounce for the third article of the said petition, and against the first, second, fourth, and last articles; and 1 therefore 2 a2 ill ■ I III II 'i J: m 596 CASES DETERMINED IN THE %?HJr" ^^'"^ *^^® accounts of the registrar anil marshal iti Aw. 6, 181d. this case, after deducting from the regij,trar's( pound- age so much as appears to be overcharged, hy as- sessing it upon the bills of exciiange, instead of the money actually paid into the registry ;— each party to pay their own costs. APPENDIX. A.~Ordfr, 2l8t Appil— Berlin and Milan Decrees iii French Dcfrfc— 28th April v 23(1 him—Suspendhig the Orders of the 7lh January, 1 8O7, ff««rffr relating to the Sale of American iihijjs.,.. ....,., .--....-.... ..........XV A Letter respecting the Trade of Neutrals with the to (loi of to En nt'i pre Be wli the crc un( ecu 1 dec eng and PI is ord and ver rep sev( and tlio AFFEINJDIX. A. ORDER, IMtt APRIL, 1812. WIIKRrAS tlip fiovcrniiient of France Ims, liy an official Report, comiiniiiiciitfd |»y its Minister for Foreign Affairs to the ('oiuervative Senate, on tlie lOtli March last, removed all doubts as to the perseverance of that Government in the assertion of principles, and in -tlie maintenance of a system, not more hostile to the nraritiinc rights and connnercial interests of tlie liritish Empire, than inconsistent with the rights and independence of neutral nations, and has thereby plainly developed the inordinate pretensions which that system, as pronudgated in the Decrees of Jierlin am\ jyiilan, was from the first designed to enforce: And whereas His Majesty has invariably professed his readiness to revoke the Orders in Council adopted thereupon, as soon as the said De- crees of the enemy ilioidd be formally and unconditionally repealed, and the conunerce of neutral nations restored to its accustomed course : His Royal Highness the Prince Regent (anxious to give the most decisive proof of His Royal Highncss's disposition to perform the engagement of His Majesty's Government) is pleased, in the name and on the behalf of His Majesty, and by and with the advice of His Majesty's Privy Council, to order and declare, and it is hereby ordered and declared — That if, at any time hereafter, the Berlin and Milan Decrees shall, by some authentic act of the French Go- vernment publicly pronmlgated, be absolutely and unconditionally repealed, then and from thenceforth the Order in Council of the seventh day of January one thousand eight hundred and seven, and the Order in Council of the twenty-sixth day of April one thousand eight hundred and nine, shall, with nil any further order. IV APPENDIX. be, and the same arc licieby declared iVoin thrnccfortii to be wlioliy and absoliifely revoked : And furtlier, that tlie full benefit of tlii? order shall be extended to any ship or tarijio capturcti jubseqnent to such authentic act of repeal of the French Decrees, although ante- cedent to such repeal such ship or vessel shall have comnicnccd and shall be in the prosecution of a voyage which, under the said Orders in Council, or one of them, would have subjected her to capture and condemnation ; and the claimant of any siiip or cargo which shall be captured or brought to adjudication on account of any alleged breach of either of the said Orders in Counril, at any time subsequent to such authentic act of repeal by the Fnnrh Go- vernment, shall, without any furth«r order or declaration on the part of His Majesty's Government on this subject, be at liberty to give in evidence in the High Court of Admiralty, or any Court of Vice-Admiralty, before which such ship or cargo shall be brought for adjudication, that such repeal by the French Government had been, by such authentic act, promulgated prior to such capture; and upon proof thereof, the voyage shall be deemed and taken to have been as lawful as if the said Orders in Council had never been made ; saving nevertheless to the captors such protection and iu- denmity as they may be equitably entitled to in the judgment of said Court, by reason of their ignorance or uncertainty as to the repeal of the French Decrees, or of the recognition of such repeal by His Majesty's Government at the time of such capture. His Royal HigLjicss, however, deems it proper to declare, that shoukl the repeal of the French Decrees, thus anticipated and pro- vided for, prove afterwards to have been illusory on the part pf the enemy ; and sliould the restrictions thereof be still practically en- forced, or revived by the enemy ; Great Britain will be compelled, however reluctantly, after reasonable notice, to have recourse to sucli measures of retaliation as may then appear to be just and necessary. And the i.i.t;;ht Honorable the Lords Commissioners of His Ma- jesty's Trcasi rv, His Majesty's Principal Secretaries of State, the Lords Commissioners ol the Admiralty, and the Judge of the High Court of Admiralty, and the Judges of the Courts of Vice-Admiralty, are to take the necessary measmcs therein, as to them shall re, spectively appevtaiiu. CHETVVYND, APPENDIX. V Translatetl froai tlie French. " Palace of St. Cloud, 2 &th April, 1 8 H . " Napoleon, Emperor of the French, King of Italy, Protector of tlie Couftderation of the Rhine, Mediator of the Swiss Confe- deration. " On the report of our Minister for Foreign Relations : " Seeing the law of the 2d March, 1811, by which the Congress of the United States ordered the exemption of the provisions of the Non-intercourse Act, prohibiting the introduction into American ports of ships and merchandize of Great Britain, her colonies and dependencies: " Considering that the said law is a measure in opposition to the arbitrary pretensions, ordained by the decrees of the British Coun- cil, and a formal refusal to adhere to a system illegal to the de- pendence of neutral powers and their flag : " We have decreed and do decree as follows : " The Berlin and Milan Decrees, from the 1st November lasf, are positively considered as not having existed with respect to American vessels, (Signed) " NAPOLEON." m. ['i At the Court at Carlton House the Q'3dJune, 1812. PRESENT Ilis Royal Highness the Prince Regent in Council. Whereas His Royal Highness the Prii.ce Re<»ont was pleased to declare, in the name and <».: the behalf of His Majesty, on the 21st day of April, 1812, that if, at any tinie hereafter, the Berlin and Milan Decrees shall, by some authentic act of the French (jlovern- ilient publicly promulgated, be absolutely and unconditionally re- pealed, then and from thenceforth the Order in Coinjcil of the 7th January, 1807, and the Order m Council of the 2G\\\ April, 180y, shall, without any furtiier order, be, and the same are hereby declared from Iheuceforth to i)c, wholly and absolutely revoked : And whereas the Charge des Affaires of the United Stala of America, resident at this Court, did, on the 20tli dny of Mai/ last, transmit to Lord Viscount Castlereagh, one of His Majesty's Prin- cipal Secretaries of State, a coi)y of a certain instrument, then for the first time communicated to this Court, piirpoitiiig to be a Decree passed by the Government of France on the 2Sth day of April, ISU, VI APPENDIX. by which the Decrees of Tierlin and Milan arc declared to be dcfi-« uilivcly no longer in force in regard to American vessels : And whereas His lloyal Highness the Prince Regent, allhongh he cannot consider the tenor of the said instrument as satisfying the conditions set forth in the said order of tlie 21st April last, upon which the said orders were to cease and determine, is nevertheless disposed, on his part, to take such measures as nifty tend to re- establish the intercourse between neutral and belligerent nations upon its accustomed principles : His Royal Highness the Prince Regent, in the name and on the behalf of His Majesty, is therefore pleased, by and with the advict of His Majesty's Privy Council, to order and declare, and it is hereby ordered and declared, That the Order in Council bearing date the 7th day oi January 1807, and the Order in Council bear- ing date the 26th day of ^J!jm7 1809, be revoked, so far as may regard American vessels, and their cargoes being American property, from the 1st day of August next. But whereas by certain acts of the Government of the United States of America, all British armed vessels are excluded from the harbours and the waters of the said United States, the armed vessels of France being permitted to enter therein; and the commercial in- tercourse between Gnat Britain and the United Statet is inter- dicted, the commercial intercourse between France and the said United States having been restored : His lloyal Highness the Prince Regent is pleased hereby lurther to declare, in the name and on the behalf of His Majesty, that, if the Government of the said United States shall not, as soon as may be after this order shall have been duly notified by His Majesty's Minister in America to the said Govern- ment, revoke or cause to be revoked the said acts, this present order shall, in that case, after due notice signified by His Majesty's Minister in Amevica to the said Goveruuient, be thenceforth nuli and of no effect. It is further ordered and declared, that all American vessels and their cargoes, being American i)roj)erty, that shall have been cap- tured subsequently to the !20th day of May last, for a breach of the aforesaid Orders in Council ulone, and which shall not have beeu actually condemned before tlie date of tiiis order, and that all ships and cargoes, as aforesaid, "that shall henceforth be cai)tuvcd, under the said orders, prior to the 1 st day of /iH^Mif next, shall not be proceeded against to condemnation till further orders; but shall, in Jiie event of this order not becoming null and of yo effect ui tha ea':e aforctuid, be i'oiiuwiiU liberated aiid lestofcd, subject to suck APPENDIX. va msonable cxpQiices on the part of the captors as shall have been justly incurred. Provided that nothing in this order contained, respecting the re- vocation of the orders herein mentioned, shall be taken to revive wholly or in part the Orders in Council of the llth November 1807, or any other Order not herein mentioned, or to deprive parties of any legal remedy to which they may be entitled under the Order in Council of the 21st April 1812. His Royal Highness the Prince Regent is hereby pleased further to declare, in tlie name and on the behalf of His Majesty, that nothing in this present Order contained shall be understood to pre- clude His Royal Highness the Prince Regent, if circumstances shall so require, from restoring, after reasonable notice, the Orders of the 7th January 1807, and 26th April 180i;, or any part thereof, to their full effect ; or from taking such other measures of retaliation agaijist the enemy as may appear to His Royal Highness to be just and necessary. And the Right Honorable the Lords Commissioners of His Ma- jesty's Treasury, His Majesty's Principal Secretaries of State, the Lords Commissioners of the Admiralty, and the Judge of the HigU Court of Admiralty, and the Judges of the Courts of Vice-Adini- ralty, are to take the necessary measures herein, as to tliem may respectively appertain. JAMES BULLER. B. Bi/ the Commis'iioners for executing th& Office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, Sfc. His Royal Highness the Prince Regent, having been pleased by Lis Order in Council, dated the 3 1st of last month, in the nam© »nd on the behalf of His Majefity, to direct that tlie Commander* of His Majesty's ships of war and privateers do detam and bring fnto port all ships and vessels belonguig to the citizens of thent hostilities, and notwitlistanding the tuid $iii|> and carjE[o may belong to any subject or inhabitant of the United Slafts of America, or may be the property of any British subject trading tiierewilli, provided that such articles shall have bneu certw fied by the Collector and Comptroller of His Majesty's Customs at the port abovementioned, from wl)€nce the same shall be shipped for any of the ports of the Uniied States as aforesaid, to have been imported into the provinces of Nova Seetia and Ntw Brunswiek, in a British ship or vessfl from a port of the TInited Kingdom of Great Britain and Ireland, or from a port of the said colonic*,^ plantations, or settlements. This Licence ta continue in force mofiths. (COPY.) Im port. — I, the undersigned Lieutenant- Governor in or over the province of Nova Scotia, and the terri- tories thereunto belonging in Anierica, in pursuance of the authority given to me by an Onler of Council, bearing date the 13th day of October, 1812, do herel^ grant this Licence, and do hereby au- thorize and permit A. B. to import in any ship or vessel, excepting a ship or vessel belonging to France, or the subjects thereof, into the port of Halifax^ in Nova Scotia, irom any port in the Uniied States of America frou» which British vessels are excluded, a cargo of wheat, grain, breati, biscuit, floiu-, pitch, tar, or turpen- tine, without molestation on account of the present hostilities, and notwithstanding the said ship or goods shall be the property of any subject or inhabitant of the Unittd States of America, or of any British subjects trading therewith. This Licence to continue in force months. F. WlIEREAE By the Commissioners for executing the Office of Lord High Admiral of the United Kingdom of Great Britain and Ireland, Si'c. the King hath beeii pleased to order that general reprisals be granted against the ships, goods, and citiaeus ©f the APPENDIX. ir United Sl(tte$ of America, so tliat, au well His Majesty's fleet aiid ships lis jil»o other ships and vessels that shall be commissioDccl by lotters of marque, or geucral reprisals, or olherwise, by us, the Coinijiissioners for executing Uie oflice of Lord High Adiiiirui for the time being, or by any person or persons, by us or them em- powered, shall and may lawfully seize all the ships, vessels, jnd goods belonging to the United States of America, or to any j)erson« being citigcns, or inhabiting within any of the territories of the United States 0/ America, (save and except any ships to which His Majesty's licence has been granted, or which have been directed to bo released from the embargo, and liave not terminated the ori- ginal voyage on which they were detained and releaswl,) we do in pursuance of His Majesty's connnission under the i 'cat seal of tin at Britain, bearing date the 13tli day of ihtober, KS12, (a copy wherettf is hereunto annexed,) hereby will and require His Miijesty's Vice-Admiralty Court oi Halifax, and the Vice-Admiral, or his Deputy, or the Judge oi the said Court, or his Deputy, now or for the t iiie being, to take cognizaucc of, and judicially to pro- ceed upon all and all manaer of captures, seizures, prizes and re- prisals of all sliipj; and goods that are or shall be taken within the limits of the said Vice-Admiralty Court of Halifax, and to hear and determine the same according to the course of admiralty and law of nations, to adjudge and condemn all such ships, vessels, and goods, as shall belong to the United States of America, or to any persons being citizens, or inhabiting within any of the territories of the United States of America, except as before excepted. And whereas His Royal Highness the Prince Regent, acting in the name and on the behalf of 11 is Majesty, hath been pleased to establish instructions under his signet and sign manual, bearing date the 14th day of the said month, for the guidance of the said Courts of Admiralty respecting the mode of proceeding on the before- mentioned captures; and by his Order in Council of the 13th day of the said month, to approve of a set of standing interrogatories, prepared by His Majesty's Advocate General, and the Advocate of the Admiralty, to be administered to all commanders, mas- ters, officers, mariners, and other persons found on-board any ship or vessel (which hath been or shall be seized or taken as prize by any of His Majesty's ships or vessels of war, or by any merchant ships or vessels which have, or shall have commissions or letters of marque or reprisals, concerning such captured ships, vessels, or any goods, wares, and merchandize on-board the sanje,) examined as witnesses in preparatory during the present hostilities ; a»d to order xvl APPENDIX. that tlic said intf rrogatorics be transiiiitte,ihle to ascertain a priori every case which may arise. Tiiose of contr 'hand and blockade liavo heei lonij settled, and universally admitted, because they nnist have early and frequently occurred. Rut assistance is not limited to those two cases only. Wliencver other modes of aid are discovered, the bel- lij^erent has a right to resist tliem; not by any new principle, but by an application of the old principle to existing circumstances. Ne.v situatif)ns create new moles of warfare, new points of attack, fMid defence. New modes of assistance will consequently be resorted to, but not the less unneutral, and hostile because they may have I)een unforeseen, because they may not have been distinctly sj>eci(ied by jurists, or provided for in any treaties. It happened so wilh respect to contraband. Ciianges in the prac- tice and the objects of war render a great part of the old list of "prohibited articles almost useless; others, not usually enumerated, become more serviceable, and even essential. Neutrals, instigated by their views of private emolmnent, for some time strenuously contended that none but the articles in the old catalogues could possibly be unlawful. The point was fairly discussevisi) me to liave recourse for precedents. This aflbnls, uniong.'st inuunieruhle instances which are evident upon the mere inspection of their respective codes, tiiat in the most pHlpable contrastimony. Now it is rennirk- able, that whilst they are coafendiiig for the most unrestrained li- berty of trade, tnidcr the natural Law of Nations, even to the sup- jilying of contraband, and relieving besieged places, lliero is not one of them who does not introduce t!ie very qnaliticatitdi which is now said to be peculiar to Great lirtlai}!. Galliani says, " a neutral •• peopi? have a perfect right to conHnue thdr trade with two •' nations who are their friends, neutrality being a continuance in " their former state, not. a new stale of thin;i:s." * Lumpredi, after establishing fh;it the only law obligatory upon neutrals is that of a perfect iinp^^rtialily, proceeds to state, that " they may carry on their connuf rce in the same manner in which " they did in time of peace, Etsi per conscf;;}icnm il faraum ncl *' modo islcsso, in cui fofacevano, in tempo di pnci."-\ Afterwards lie calls it, " // loro solito commcrcio," their nsual tonnnerce. Azuni defines perfect neutrality to he, when a power "continues • ** to conduct ilsclf ffs it did btfore the war. Quand line puissance *' continne d se cottduire, comme elk le faisoit avant la guerre " Pas- sive neutrality he makes to consist in this, en conliiruciit desouffir que toutcs les nations bdU\i:fruntesy ou qmlqucs.vncs d'elles continuent d'intrcduire tt d'e.rporter Ick mcrchandi.u's qu'on inlrodiii.soit dans son pays, on qu'on en exportait avani la gnerre. Again in another place he calls it, fc droit qn'il avoif uettnl la ginrre. So, qu'ils doivent continiier de fairc Itur commerce de l\r mCme manivre et avec la nit me libcrft qii'en temps de pair. Le (onunvrce etant per mis en terns depaix aux sujcts d'nne pniss(.ri;e, il hv.r sera encore permis di lafaire avec le mCme liberte prnduni la p^iterre. lie lays it down as " an hivariable theory, as founded upon the rules of natural justice " and the law of nations," qii'il doit etre permis aux nations amies ef ncutre de poiirsuiire, dans tcut son elendue, leur commerce de • Dti Doviri dii Pivcijii Netitruli, cli. 9. § 2. t Del Commacio dci Pv^'nU iHuiruli, J 5, ^- p. 45, I APPENDIX. XXill fn mime mnnierc et aire la mime libertc qu'ils la pratiqiioicnt en tims lie pair. Ai'teiwaids lie calls it, the comiiierce of which they arc in possession. To be impartial in commerce, he sajs, in equivOm Itnl to doin^ what they did bcj'ore the war. " The mischief done " by belligciciits to neutrals is by interrupting their commerce, et " en nc les laiasaitt pas dans Vet at oil its etoient avant la guerre." And, not to multiply quotations, lie says linally, that it is sutiicicntly demonstrated to be an incontestible principle, que les puissancet neulres pciivent libremcnt commercer avec chaque parlie bellige.. route snr le mime pi d oil cioit Icur commerce en terns de paix,-r- " Trade freely with each belligerent party, upon the iame footing upon which their commerce was in time of peace."* It seems then, that the warmest enthusiasts for the rights of neu- trals, claim fur them only their usual and habitual modes of com- irerce. If this is the rule which is to determine the extent of their li-^jiits, by a parity of reasoninj^ it must form the just restriction of them. So much for the assertion that the British principles are su})ported by no authority. But these principles, whether founded or unfounded, Great Bri' tain is said to have abandoned. In the Message from the Presi- dent of the United States, is the following passage : " The right " of a neutral to carrv on coinmertLl intercourse with every paift " of the dominions of a belligerent, permitted by the laws of the " country, (with the exception of blockaded ports, and contraband ♦' of war,) was believed to have been decided between Great Bri' " tain and the United States by the sentence of their Comniission- " ers, mutually appointed to decide on that and other questions of " difference between the ttvo nations; and by the actual payment *' of the damages awarded by them against Great Britain, for tiie •' infraction of that rigiit." How any such points can be believed to have been decided by those Commissioners, is ditlicuit to conceive. It is certain that they bad no such authority from the Treaty, under which they were ap- pointed. The article alkulcd to premises, that " Whereas, com- «' plaints have been made, that divers merchants during the course of " the war have sustained losses and damages, by reason of irregular *' or illegal captures, or condemnations, ot their vessels, and other ** property, under color of authoiity or commissions from Mis iMn- «' jesty; and that, from various circumstances belonging to the uid • Aziini, Siiftnnc uniwnel (k Primipes du Droit MaiUimif, Vol. 11. piife.» m, 31, -13, bJ, 83, 95, I'JO, anil 211. i ' m %%w APPENDIX. *• cases, adequate compensation cannot now be actually ohtainerl ty •• the ordinary course of jndicial proceedings; it is agreed, that ill •• all sucfi cases, where adequate conipens.ition cannot, for whatever " reason, be now actually obtained, in the ordinary course of justice. •' full and complete compensation will be made by the British (Jo- "• vernincnt. For the purpose of ascertaining the amount of any " such losses, five C(«nunissioners were agreed to be appointed. They •• were to receive evidence, to exercise their di^icrelion, and to decide " the claims in question according to the merits of the several cases, •' and to justice, equity, and the law of nations." That these Conuriissioners had then a power to ascertain the compensations due to particular merchants who had made complaint is clear, and was admitted by the iJjfVwA Government by paying the sums awarded; but I am at a loss to find any thing in this treaty like a reference to them of any general questions upon the Law of Na- tions, either as to the colonial trade, the rigiits of neutral commerce, wr any other ditferences, of such a nature, between the two nations. If no such express reference was made to them, neither could their decisions in those cases operate as precedents to be binding in future; for they could have that effect only from an authority to decide the general questions, or from an agreement that these sentences siiould regulate the future conduct of the parties. Those points are of such very great national importance, and so materially affect Great Britain, as a power too often unfortunately in the situation of a belligerent, that whenever they have beeii brought upon the carpet, they have been coisidcred as the subjects of the most cautious and deliberate iiegociatious; nor Ims (ircdt Britain, in any instance, ever been known to recede from them. It is not easy to be supposed that tliey should have been referred to a board of Cominiasioncrs so conditutcd. By the teiins of the treaty, the fifth Comniissioner was to be chosen by lot, out of two named respectively, one on each side, and all decisions wert to be made by the majority of voices. It was an equal chance, therefore, whether the majority woidd not consist of the American Ciminissioners, and consetpu'ntly the decision in every case rest solely with them, independent of the oiiinions of the English Conr- inissioners, as proved actually to happen. It was most incredible tliat the English Government sliould have trusted to mere hazard w ether ihey had not entirely submitted th-? decision upon all the principles they had ever maintained respecting neutral commerce, t) the discretionary power of commission rs sent from a country wh U was known to be hostile to those piiuciples, and whether they (l»iiU uui autiiorised tbem to leuounce ou iiie part of Great Jiritein APPENDIX. xxr k\\ tliose riglits as a belligerent for which slie had so often fought, und which liad been so often declared to be absolutely necessary to lier security. In short, it would Jiave beet» to have risked some of her best and dearest interests upon the cast of a die. If, indeed, the ministry had actually referred those points to them, they would have been bound to submit to their decision; but these considerations •hew that it was next to impossible that they should have made such a reference ; and the treaty itself is a complete demonstration that no such reference was made. Tlie lot determined that a majority of the Commissioners should be Americans, and, iu many cases, they decided in favour of their countrymen, contrary to the principles maintained by Great Britain, It is drily observed by the American Secretary of State, " that it does not appear whether the British Conunissioners concurred iii these awartls." The fact was notorious, that they not only did not concur, but that they strongly remonstrated and protested against the proceedings of the American Conunissioners, as contrary to the Law of Nations. The sentences, no doubt, in those individual casea Here equally binding, because Great Britain, by the treaty, had agreed to abide by the act of the majority. It was binding as far a* the authority went, -but no farther; and the non-concurrence of the British Commissioners is an additional reason why those decisions should not be extended beyond the express power defined by the treaty. That no such renunciation had been made, either positively or virtually, was certainly understood by the British Government, because His Majesty's instructions, both in the last and the present wars, implied, that the old doctrine was still considered as in full effect. It is asserted, that these principles have been renounced by Great Britain on another ground, that of His Majesty's Instructions, ex- plained by the decisions of the Court of Admiralty. It is alledged, " that the British regulations admit a direct trade " between a belligerent colony and a neutral coimtry; that it ha& " never been pretended that a neutral nation has not a right to re- •• export to any belligerent country whatever foreign productions •• may have been duly incorporated and naturalized, as a part of the " commercial stock of the country so importing it; and finally, that «• landing the cargoes, paying the duties, and thus qualifying them •• for the legal consumption of the country, does incorporate and «' naturalize them, so as to qualify them, equally with native pro- *' ductions, for exportation to a foreign market." By these regulations, Great Britain, it is true, relaxed from her Widoubtcd right of seizing vessels employed in a direct trade be* xxvl APPENDIX. twccn the coloiiios of llic enemy, and lUMitral roiinfrios, but il (uinc(< out llial the .subjects of the |)iiiiii|.iil nation in wiios.. fiivo-n-, uml for whose iv.ulicnlar benefit this leiuNalion was grantr.l, i.bustd the privilege, to violate, in reality, the more important n.le, v.hieh had never been seeeded from; tiiat vvliicli j)roi)ibited the Inide belueeii the enemy colony and the enemy parent state. V.y imj).)rfin- first into their own country the produce of the enemy's colony, and after- wards shipping them on, they completely opened the trade between the colonies and the parent state. This circuitous mode was indeed attended with some delay and some additional cxpence, but in the end it eflectually answered the purpose of the enemy, and restored all his colonial advantages. Such an unfriendly misapplication of an intended favour, and sucli an indirect violation of the rights of Ctrat Uiituin, coidd never be submitted to. Accordingly, the Jirithk Courts of Admiralty have condemned vessels and cargoes which were seized in tins commerce between the parent state and the colonies, notwithstanding the pre- caution taken to make a regular progress through the neutral ports and custom houses. Where the original intention was proved to have been to carry the colonial produce to rrance, it was evident that the compliance uitli those forms was merely with the design of evasion, and of sheltering themselves under the instructions"! It never could be contended that a privilege granted for the benefit of America should be converted into a service to France, that the in- dulgencies of Great Briluin should be turned into arms agai.st herself, or that the connection between the colonies and the neutral country slioidd have been designated merely as one part of a line of communication between those colonies and their parent state. It IS said that these condemnations were in din c» contravention of former decisions, that of the Polly, Lashry, in particular, whicJi had received a confirmation in the letter from Lord Uawkesbury to the American andjassador. It is a sufficient answer to that argument to observe, that His Majesty's Instructions in the late war, which were the subject of decision in the Polly, Lahy, were very diilerent from those in Uie present war. Whatever niighl be the constriu tion of those orders, mider the words of xha prcseiU histruction, which directs His Ma- jesty's connnanders not to seize any neutral vessel which shall be carrying on " trade directly between the colonies of the enemy and the neutral country to which the vessel belongs," by any mode of interpretation, what prohibition can be understood to be given to those connnanders, " not to seize vessels which should be carrying on trade, directly or iuductily, belwecu the colouics oi the enemy APPENDIX. Uxx anil the moli.er country of ll.c eiitiny?" But if no sudi directions were jjivtu to our criiibers, no relrtxatiou in tliat res|M;cl lias been al- lowed l)y iinat Britain, and (heir commerce »tiil continues upon lis natural footing; that is, as I have already proved, un uinicutral coimnerce, in which UrUish cruisers are ^tiil at liberty t(. nuke seizures, and Courts of Admiralty to proceed to condemnation. Hut the present deti.iions are perfectly reconcileable to the prin- cij.les laid down in the Polhj, Laslcci/,m,io speak more accurately, they depend upon the very identical principles there clearly stated. All that ii admitted in that case is, that " an American has u right •' to import the i)roduce of the colonies for his own use, and after " It is imported bonajide into his own country, he would be at li- " berty to carry it on to the general connncrce of Europe." The question then was reduced to this point, what was " the test of a " bona fl,k importation?" In that case, Sir William Scott said that he was " strons:ljj disposed to hold, that landing a cargo and " paying duties would afford sullicient criteria." He adds, " if it " appears to have been landed, and were housed for a cons'idi-rable " tnne, it does, I think, raise a forcible presumption on that side. " and it throws on the other parti/ to shew how this could be merclu " insidious and colourable." The utmost then asserted by that highly eminent and respectable judge, was merely that entering, landing a cargo, and paying duties. afforded a presumption of a bona fide importation. Even this ad- mission is very much <|ualiried by the introductory words that " he was strongti/ disposed to hold." which shew that it was far from being a point clearly decided in his mind: it implied that some iloubts still remained. But it was never laid down to have been conclusive proof , a presumption juris et de Jure, against which no- tiling could be averred. All presumptive evidence may be repelled by other eviilence, and it was declared in that case, that the other party might shew to the contrary, even under the most favorable fttate of circumstances which raised the pi sumption, namely, that the transaction had taken place for a considerable time. in that ca'e, therefore, it was distinctly declared that there might be an importation^ accompanied with an entry and payment of duties, which tvas not bonajide, and ivhich consequently would not qualify the goods to be carried on to the general commerce of Europe. In the present war it appeared that these circumstances did not afford the presumption of a bona Jide importation which was sup- posed. The whole trade between France and her colonies found its way through ueutjal ports. It was evideut that this was not the u kxvut Ai»PENDL\:. usiiul trade of America, nor could it be nousidered in any decree ^4 an iiiiportalion for tlic use of llie United States. It was in reality the interdicied trade between tlie colonies and tin; parent state, rcvivcrl :\nd carried on under the supposed security of formalities, which, ia the case of such a trade, could be considered as only fuUc and eolci.rai)!e. And, indeed, how could paying duties ns on good>* meant for home consumption be held to be a proof that they were intended for home consumption, when it was clear that tliey were designed originally to be sent to France? How, niider such circumstances, could it be said that they • \tcii duly incorporated and naturalized, *' and made a part of the commercial stock of the country ?" How can a mere compliance with the legal requisites of qualification for domestic use, prove, against plain facts, that they were designed for that object; or if they were not intended for home consumption, how can they claim the privilege of naturalization ? If they are only on their passage, they still continue strangers, and aliens. Be- sides, what privilege in reason can be derived from the payment of duties, after they are drawn back upon re-exportation? If the pay- ment of duties upon importation incorporated and naturalized the goods, on a supposition of home consumption, the drawing back those duties, and their exportation, must liave dissolved the incor- poration, and unnaturalized the naturalization. When imported into France, are they there considered as "part of the commercial •tock of the re-exporting country?" Certainly not ; //ify are ad- mitted vpon reduced duties, a privilege to which no part of that commercial stock is entitled. They are there admitted, not as Jme- rican stock, but as the stock of the French Empire ; not upon the footing of native productions of the United Slates, but upon the footing of native productions of the Frnich West India islands. It is argued, that " there is an impossibility of substituting any •' other admissible criterion of a bonajide importation, than that of *• landing the articles, and otherwise qualifying them for the use of *' the country." To substitute any one technical criterion which shaH, in all cases, amount to positive proof, is indeed truly impossible. The criterion now insisted upon has proved very insufficient for that purpose. Daily experience shews, that whenever a particular rule or a positive criterion is attempted to be established, an undue use is immed alcly made of it; by complying with the mere form, while the sub: lance is evaded, by setting up the empty literal ohadow of the criteiion in opposition to the very i'acts which it \vas designed io prove. WhcH tUe formalities now conteuded for were to be considered as supplying APPENDIX. XXIX « felt, fvery atom of cominotlities designed for tlie French markets went througli the regular routine of home consiim))tii)n. It is justly observed ni one of the memorials presented upon (his suhject to the jhiiirican Government, " tluit if a bona fide sale and delivery by an " ini|)orter, for a valuiible consideratiDn, will be conclusive evidence, *' the rule when once understood tvill become nu^atorif, and cease " to produce anif commercial or political iffects." The circum- stances of the case, taken in cnnd>ination, can alone furnish that proof which a bt'llinertnt has a ri|L'ht to expect ; a proof which must be sutticieni to prfui'ice a conviction in a reasonable mind, that a given ciirii;o is not the produce of the encin>'s colony, travelling in its passage mediately or immediately to the parent country. The law of nations is the law of sense and reason, not a mere code of artiticial rules Where a neutral country has been guilty of a breach of one of its most important duties, in reality and in sub- .stance, it will never regard under what outward formalities the transaction may liave been disguised. The colourable appearances of a fair coumierce may be easily superinduced, but the injury to Great Britain, by the restoration of the colonial trade of France, is not the less real, or effectual, whether the communication is direct or circuitons, whetiier the whole lias been managed by a single per- son in the same vessel, or through ail the metaniori»hoses of impor- tations, sales, trans-shipments, wareiiouscs, entries, duties, and re- exportations, through the hands of an hundred difterent merchants: under every mask, and through every evasion, it is the conduct not of a neutral but of an enemy, and this country wo\dd be wanting in the duty and justice it owes to itself, if it did not seize and confiscate all property so employed. Is this then an "oppression of neutral commerce and navigation; " are these circumstances of iniquity and violence, enormities, scenes " of violence and depredation, and the ra\ages of freebooters ?" Is it a new or indefensible principle in the law of nations, that a great and respect;il)!p « ountrv, engii'.'cd in a contest for its very existence against one of tlie most powerful empires in tiie world, shall not stand idly looking on, and infatuated, when it sees its inveterate enemy protected under the shield of a pretended neutrality? When armaments which exhaust its treasury are reuderetl useless its vic- tories unavailing, and the blood of its brave dei'-'udcrs an i?ie<}ectual sacrifice, its cfTorts paralized, its enemy rescued from its gra«p, and enabled to pi.rsue a contest of which the e\ent may be fatal to itsi If — can a nation be under any obli;;ation to suffer all this with iinpunitv'? The insatiable ravenousness of nierf^antilc avariii- may jwite with our enemies iu calmnaious declamation, but the right isil 1 XXX APPENDIX. fliiimed by Great Britain h not the less solid and indispntald**. ft is a iii'ce.«is.iiy roiisi'f|iieiico or corollary of the ri<;hli of war. It i* a part of the primitive and most siicred right of iiiankiiiii, that of SKLFDEFENCK. It is tiic mere exercise of a natiir;d ri;{ht; not an act of superiority, or of jurisdiction. It (hpcuds u|ion no con- vention; it retpiires no consent or acquiescence on the part of other nations. It is not founded npon llie opinions of jurists, upon written authorities, or the decision of tribunals. It is no variable rule, prescribed by an arbitrary will, and enforced by an arbitrary power. It arises from no partial views of policy or self interest in any par- ticular state. It is not of today or yesterday, but it is one of the eternal and immutable dictates of the law of nature and nations; of that law which derives its orit;in and sanction from the Great Creator, from that Being who has given his creatiin>s the power and the means of protecting themselves and their just rights against all assailants, under whatever names distinguished or disguised. They are rights which a country may relax or surrender, but of which it cannot be deprivetl without a violation of every principle whifh is held sacred ia the intercourse of nations. ki FINIS, Lord Aliet Jimh( Amcr Armi INDEX. Acts A. of PitrliitmmtSco Nnvipntion Laws I'i (hur. II. til. IH, sfct. 2. 30 Geo. II. di. 7, Aliens settling i,, Colonies. 30 Geo. III. <•. 27. Do. 37 Geo. III. t. 97. T«. confirm tlie Amcriran Tieatjr 4() Geo. III. c. 107. Offences vvl.eie to lie tried Puovr- DKNCE, Mac Null. -— 7 «c S IVm. III. f. 2. s. 2. Coastinir Trnde'of Clonics 20 Geo. III. c. 00. s. 8. " I'eople" cquivaKrit to " In- lial)itant«." 34 Geo. HI. c. 08. s. 14. Recital in Bills of Sale ofSbin,. 30 Gao. HI. c. (X). s. 18. » 27 G>(). III. c. 19. s. 7. /^'""ge of Master ■ Frienos Adventure, Ciirnj, — — AC) Geo, III. c. 49. Continued 52 Geo. HI. c. 20. Lawful to Import into any Port in No. x-a-Scotia, &c. which His Majesty shall appoint, any Goods, &c. Economy, Holmes, Lord Higk Jdmirali—Tlmr Power and History ^Little* Joe jiliens—Do not become British Su!)jccts hy the Oath of \\\e'^\. unce. Not j)rivile(,'ed by the Licence of the Governor of Nom- Scotia Providence, Mac Nutt Embassadors— Camot grant Licences to authorize the Enemy to trade with the liritish Dominions. Sally Ann Rcpiescntations of, intitled to Credit without further Evi- dence Amanda • • • • Mode of Proceeding upon an Application after S.-ntence ^/«crica« «'ar-The Declaration of War by the United States did not place the two Countries in a complete stnte of War, till the Order for Kcprisals by the BrHish Go- vernment Dart, Ramagc — . American Property found in the British Dominions not liable to be seized on the breaking out of liostili- tics Do. • • . , , '^mins— For self-defence, lawful Haity Covvui Page 180 200 446 394 ISO 3(37 442 ib. 301 ih, 65 INDEX. 'aze Jrts and Sciences— Vwtectsd and exempted from the operations of War Marouis de Somerueles, 2d case - 482 B. Blockade — Of Martinique. Evidence of, and knowledge of the Parties Nancy, Hurd ■ '■ " of Martinique, closely blockaded from the l6th of June, 1803, to the end of May, 1814. Vessel taken two Months after the Blockade had ceased, restored with Costs - — Betsey, lavage — - of Cwracoa— Excuses for the Breach insufficient Eli- zabeth, Bcnners . - . •— - Merely carrying [lassengers, no excuse for breaking a blockade Tamaahmah, Shiddy — — Gewerai, of all places under the Government of France. — History of. — Hamburgh within it, — not broken by trans- porting goods to an open Port by Land Carriage Thomas, Wilson ... — -. of Copenhagen and Zealand did not extend to other Ports in Denmark Express, Haskett " • of Leghorn broken by bringing Goods from thence by Sea to Civiia Vecchia Marsuis de Somerueles — — Must be de facto, as well as a notification. ■ of New York. " of New York commenced the 22d ot June, 1813. After public notification, the actual investment constitutes a complete blockade without further notice Republi- can, Beaupin - _ . " ■■' ■ where a Blockade has been known to exist, the Claimant must jHove the relaxation ; but where it is not known that a blockade has been commenced, it is for the Captors to establish it by evidence »— Licensed vessels not aifected by an Order for Blockade, when such ajjpears to have been His Majesty's intention — — Affects the Enemy only de facto — neutrals de jure . Orion, Jubiu ... — — Where a blockade has been notified publicly, no further information is necessary j and if a vessel, knowing of such notification, sails to the Port, ai;d finds It block- aded, it is a Breach of the Blockade Carlotta, Car- valho .... ♦— - Veisels associated for a Blockade, intitled to share in Cap- tures of the Enemy's Property, though driven on Shore aodseiza d there— —fjucHT, Kelly 23 3? 81) 254 26g 292 44S 571 4Q7 539 559 I N D E X. i III c. Page (^fearing out. — 'i'u Boston, vntcr'iug, trading, and clearini? out fidin tlience to Halifax, was aa importation from i?os- lau. The Ijiif^ Union - - 93 Ctrtlfirnles of Or't'nn The American, Wvrthinston - 280 Cvinmundern — iimy t-nter into contracts with the siilyvcts of the euiuiy for the 3ii|>|)ly of their i'ojc(s, aiul grant pahS|)()rts to protect theuiin such transactions— —The Two liao- THEUS - - - - 551 Commissions of Unlivcrij — ^The conrt appoints the place La Mekckd - - - . 219 Contempt — Commitment for— —Enoch Stanwood's case 123 Contrabuud — On the outward voyage, under false papers, condem- nation Ar AMI NTH A ----- 47 United States, Moor - - - II6 Happy Couple - - - - 65 Success, Dati .... 77 — — Co|)per in pigs going to a ])ort of naval military eipiipmcnt — t()ntr— Clyde, Games - - - — to export from Great Britain to the United States— not ne- cessary that the person who obtained it should be owner or actual lader, if he had the direction of it Abi- gail, Johnson ... — To the enemy to trade with the Biitish dominions, cannot be granted b-/ an ambassador Sally Anne, Day - . granted under the Order in Council 8th Jpril, 1812, autho- rizing certain exports and imports from Hal fax to the United States, not valid aftei tlie war commenced with the United States, nor rendered valid by the new order of the 13th October, 1812, which directed licences to be granted notwithstanding such war— EcoNenv, Holmes 4 i^ 11 394 100 855 366 ■i^' I N D Ti t. i»Hj,'e Lict'Hces— -granted by IMr. Allan tlic nritisli ooiisiil in the Cutrd States, void. — Molr — decided olliciwisc in t'lc IIii;ii Court of Admirahy ill the HofE. Uewaui), IliU where tlu; licence tiiid iiccn l)iinifd iiikUt a inistiike — uiioii proof of the I'uct, tlie vessel wms restored Imikhkhick Augustus - . - to trade between two poits of the eiuiuy — void. Claimant's exiienccs allowed under particuhircircuni^tanceb— — Ex- I'EniTioN, Brooks - - - the benefit of them not forfeited by carrying a toinuion letter hae;, extracts from newspapers, or the dispatches of an Aud)assador of the enemy in a neutral country, lo hi,? own government Menry, Gardner ^ Licences not suspended Iiy an order for blockade, where such appears to I)e His INIajcsty's intention OuioN, Jiibin . - - - licences no protection to parties not named or described in them Johanna, Nciocombe - - . - Arab . _ . - - — — no exception in favour of British subjects Cuba, Thomas 525 forfeited by a deviation from the voyage, and taking iu a cargo— —Eunice, Riggs . - - 528 .^ a leak and want of water proved no excuse for deviating from the licenced voyage Vilgium, Baker - 533 other excuses not j)roved Belle, Steinhaucr - - 537 476 'ISO* 'J MS 480 521 546 M. Wflri/iaZ— Cannot deliver up prize property without an order from the court Stiook's Petition . - - 427 ___-. entitled to 7s. (id. a day for the custody of the vessels Hi- ham, Or me . - - ■• 58,'} N. Navigation Lau-*— Utility of that system, particularly to the co- lonies Economy, Holmes _ . - - -— - spirits of turpentine, not importable under the 33d Geo. HI. cb. 50. sect. 14. *— importers made owners in that statute — British subjects resident abroad, cannot import under it.— — Nancy, Iluxford . - - - - 446 49 INDEX. I'uge Niiii^iUion Lawn — 27 Geo. lll.di. 27. free port act — none Itiit the ciiuiiiPiiitf'd {i'doda can hp im|)ort(;(l. Not siispcndrl I»y war with Spain, by tUv. Order in Council 23(1 Supt. ISO'J. Non-enumerated artit i(!s only forfeited, not tiic vessel and the enumerated articles— —Nuestiu Senoha DF.i, Cahmbn . . . . ,8* .„ — CIciiViiiK out to Boston, entering, trading, and clearing out from thoncc to Halifax, an importation from Bun- ion Union . . . . .98 ■ To avoid the Embargo of the American Government, no ex- cuse for entering //«/i/'aj Patty . . . 299 • • Certificate of probal)le cause of seizure must lie granted upon facts appearing in the cause, not by subsrciucnt aflidiiviis, under the 4th Geo. III. c. 15. s. 40. .Schooner Fa mu 112 Putting into Pliiladelphia in distress, without landing or en- tering a cargo, not an importation from thence Touching at Co77f for a convoy, and at Madeira, no deviation from a licence from Bristol to St. Domiiii;n Ship Active ...... lOf) — - Offences, where to I)c tried, 49. Geo. III. chaj). 107. Aliens acting as merchants in the colonies Pkovidence, Mac Nutt . . . . . .ISO Change of Master not endorsed on the Register, vessel lial)Ie to forfeiture Friends Adventure, Currij . 200 Importation to avoid the American embargo, no excuse for importing into Nova Hcotia Daut, Itamai^e . 'iOl o. Orders in Council — Cases upon the ■ 2:jd September, 1803. Trade with tlie Free Ports to con- tinue, notwithstanding hostilities with Spahi N'uks- THA Sknoua del Caumicn . . . 8:J iQth Novemim; lbl}(). Trade to St. Doming'-) with licence Clyde, Games . . . 100 24th June, 1803. Colonialtradc contraband out United States, y ■"•... iU) 15tb J«/y, I8O7. A qualified licence to trade to St. Do- viingoi and 14th December, 1808, trade to St. Domingo laid open Beavexi, Jones . . • 1/3 . . Of 26tb April, I8O9, not v<;voked, in consccpiencc of the Duke Ds Cadore's letter of August 5, 1810 Ntw Ohi,£ANS Packet . . * 2G11 I « INDEX. Blockade of the Eyder dis- orders in Council — 2(1 Octoher, 1 8O7. coiitimu'd 13th July, I8O9 3 1 St May, I8U9. Trmie to IMl^olnnd llth November, I8O7. Trade in eiicniy's produce revoked 2(ith Jpril, 1 80g Thomas, W'l/sow. . — — - llth November, I8O7. Certificates of Origin, revoked by 20"th April, I8O9 American, IForthlngton — — 7 i^ January, I6O7. Tradingbetneen enemy's ports Ex- press • . . . —— 31st July, 1810. To detain American vessels, petition of Sir J. Warren .... *-— 2Qih April, I8O9. Suspended by order 23d June, 1812, con- ditionally. The condition not having been con)j)lied with, the first order is in full force again (jv.oi\ot.,kobert$on — — 8th April, 1312. Permission to import and export from Halifax to the United States, Wheat, &c. I3th 0(i\\ April, ISOg. For prohibiting commerce with Franc*, The principle of it considered, and justified — «- Not a blockade properly speaking, but a defensive measure of auotber kind Ohion, Jubin Page 26g 286 292 327 3S9 445 470 Partnersh\p-.Om finding a licence and his name, the other the cargo J one to share in the profits, not the loss— Her- kimer , , ^ . 22 25 Privateers— yiast have a lawful commission— ^Curlew, Mag- "' NET, and others Prize Agents and Capru*— Taking iiway a prize fiom the custody of the marshal-— Cossack • . . . — Court of, in a neutral country, cannot deliver on bail, with- out the consent of owners— .Hibbert, Hayne$ — — before condpmnation, is a trust, and cannot be alienated, without the consent of all parties, or unless jjerishable. Tlie liing has no vested right till condemnation. The king's officers and hoards of service, have no light to purchase where other persons have not ; and have no pre-emption where sales can he made. Cases of public necessity for defence of the country form an exception Curlew, Maonet, and others r'tza— detained upon the decUration of war l»y the United States, and under the order in council, 3 1st July, 1812, and uUitnately condemned to the king, jure corona, as having been taken lufore the order for reprisal, c«»uld not be sold or bailed, without an authority from the king, unless in a perishable state. Measures taken for tLeir preservation— —Petition of Sir John Warren, &c. .... — — Proceedings respecting the agents appointed by the crown, to receive them Snook's petition, &c. •— — Taken before the order for reprisals, 13th October, 1812, not given to the captors by the order for distribution—— Malcolm, Jordan .... — "— Taken under commi!!sions from the governor of a province, without a warrant from the Admiralty, not given to the captors, by the proclamation for distribution Little Joe, 1st case . . . , Property — Enemy's covered .Venus, Oak/ord forfeiture of property connected with it -Herkimer ■ ' '■ American, concealed as Spanish, in the slave trade La. Merced, Echeveria .... R. Ransom — When justifiable, under the prize act- ■ The Fanny and the Plough Boy .... Ransom Act — 22 Geo. III. chap. 25, and the clauses in the prize acts, relating to ransom, extend only to vessels captured in war, not to those seized for other causes— —Patriot, Reardon ..... Registrar — Entitled to 5 per cent, upon the gross amount of all the money paid into the registry— -Hikam, Orme Pag» 513 . 40 313 327 427 379 38S 12 i; 205 554 350 58S J N D E X. 8. I'nSC Sale — Of a ' sel, proved fiaudulent— — Gustava, S'iertbrrg Saloai^e — For rescue l)y the crew, one-sixth. Kiriu's Ships not intitled to, for pcrfurming their ordinary duty Wal- ker, Clarice . . . , . — — Enemies property protected by a licence, liable to pay sal- vage for services rendered hy Brithh sliips None due for rescuing a vessel, which had been seized for a breach of the laws of its own country Abigail, Johnson , . . . . Slave Trade — An American vessel condcnmed La Meuced, Echeveria ..... . ... . Not necessary to have slaves on board, it is sufficient if the trad^ is incipient, prourossive, or complete ; may be proved l)y the nature of the vessel and cargo, in opposi- tion to the positive oath of the master Severn, Bradford . . # • • T. Trade — Between enemy's ports, by order in council, 7th January, I807. Intention not sufficient, must be caught between the ports— —Express, Hasket Treaty — American. Vessels may go to supply witli necessnrics the vessels employed in fishing, upon the toasts of Labrador —Fame ..... A complete dissolution of all connexion between the King of Great Britain, and his former subjects in the Colonics — — Proviuence .... Ireatij— Swedish, 166I. Passport not being accoiding to the form there prescribed, a vessel restored, i)ut claimants con- demned in costs Stockholm, Chaplain — — /dcHJ.—— GusTAVA, Swenbcrg >G7 lOd 35^ 205 284 292 i>5 180 379 511 V. Vice Admirals— 'Thc'w powers and history ; cnnnot issue letters of niarque Little Joe, Fairwcathcr . 382, 3gi w. «rtr— Does not exist till authoriset, conveying His Royal II ghness the Prince Ilo^rent's commands, that you should take the necessary measures for furnisiiing his lord'^hip with the information requiied j and you therein request that I would give you such information upon the subject as may be necessary to explain the whole cf the circumstances of the cases referred to, in order to be transmitted to Earl Bathurst. 1 have attentively considered the note whicii has been delivered by Mr. De Rehausen to the British Government, with the papers annexed, and the complaints therein contained, and I have now the honour to transmit to your Excellency, in obedience to His Royal Ilighness's commands, a statement of the fact^ relating to the cases there referred to. I must previously observe, that the proceeding of the claimants in these complaints has not been in conformity to the established practice between nations, and to the subsisting treaties between Great Britain and Sweden. By the law of nation^, as received in every country in Europe, Courts of Admiralty, with their Courts of Appeal, are established as the common tribunals, to dt-cide upon all captures made at sea. "By the law cf nations," as ju-tly stated in the celebrated answer of the British Govcrnmentj to tho d2 IMAGE EVALUATION TEST TARGET (MT-3) /. L ^ ^ 40/ ^ ^^ t<^/ 1.0 t I.I 11.25 '^m 12.2 III 2.0 1.4 1^ 1.6 ml: V] <^ ^ /: k,. "■■ v> w %^ M '/ Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 m \ '^S^ O ^9) .V ^^ ,A ^'^ ^ ADDENDA. Prussian Memorial, in I75'2, " dnimiints ouglit not to complain to " tiieir own sovorcii^ii till injustice in re ininime dubia was Jinally " done them, past redress." By the second of the additional arti- cles to the Convention, lietwceii His Majesty and the Emperor of Russia, in 1801, to which Sweden acceded, it is agreed that " if " the ministers of one of the High Contracting Powers should re- " monstratc against the sciitence which shall have been passed by " the respective Courts of Admiralty — appeal shall be made to IJis Majesfj/^s Privy Coimcil.''^ In deviation from this established rule, the claimants have not only complained to their Government in cases in which, although sentence had passed in the Court of Vice- Admiralty, the Court of Appeals, being His Majesty's Privy Coun- cil, is still open to them, when those sentences are liable to revi- sion, and if erroneous, to be reversed; but they have complained of seizures which had not even been adjudicated upon in the first in- stance, and therefore no ground for any complaint of injustice could have existed ; unless it is meant to deny to His Majesty's cruisers all right of search and detention whatever. I leave it to those whom it more particularly concerns, to decide whether this mode of making every capture, before it has undergone the inves- tigation of a Court of Admiralty, an immediate question between Governments, is better calculated to promote harmony between nations, than the established methods of judicial enquiry; by which too, every case, in the last resort, is regularly examined and de- cided upon by His Majesty's Privy Council, and his highest Minis- ters of State. I cannot observe without the deepest ailliction, the severe and, I trust, unmerited reflections, which this high and eminent person has been induced, probably through the misrepresentations of in- terested merchants, to make of His Majesty's Courts of Vice-Ad- miralty ; in asserting that "their sentences are often partial." By the law of nations, according to that urbanity which is practised by all civili/cd countries towards each other, respect is due to the tribunals of another nation, until they shall have been clearly con- victed of a voluntary departure from their duty ; an imputation which has never yet been proved of any of His Majesty's Courts of Prize. Till then, such charges are an injurious reflection, not only upon the persons who preside in those Courts, but upon the justico of the British nation itself, and a covert iasinuatioa that ADDENDA. b the Convention of 1801 has not been fiiithfully observed by His Bri- tannic Majesty, which rcquiips that " the judgments upon prizes " made at sea shall be conformable with the rules of the most exact "justice and equity, and (hat they should be given by judges above " suspicion." That illustrious person must certainly have been uninformed of His Majesty's anxious care for the due administration of justice to all nations, by placing tlie Courts of Vice- Admiralty, a few years since, upon the most respectable footing, by appointing Judges with large salaries, by enlarging their jurisdiction, and by selecting persons from Kiiglaiid, who, by their practice as advocates in the Courts of Prizo, were acquainted with the law of nations, as there understood ; persons, who, though inferior in rank and talents to some of the eminent characters who preside in the tribu- nals in England, I will venture to say, as far as I have any know- ledge of them, will not yield to them in the purity of their motives and the impartiality of their decisions. Their judgments may be occasionally erroneous, but they are not corrupt. The Judges have no concern whatever in prizes, and no personal interest in their decisions, whether for or against the claimants ; and they are too proud of the honour of their country to compromise it for any sinister views. If he had enquired into the fact, he would have found that the decisions in those Courts are guided by the same rules and principles which direct the superior Courts; that an equal measure rf justice is dealt out to all parties, and he might have been informed, even of some recent decisions in that very Court against which his censures are more immediately pointed, of large damages awarded against captors, in favour of neutrals, and even of the enemy, and that if no Swedish cases have occurred of that nature, it is because His Majesty's cruizers have respected the Swedish flag, and have been cautious of detaining vessels, unless the grounds of detention were clear and indisputable. The general complaint against His Majesty's cruisers " of do- ^ taining Swedish ships and cargoes, although laden with innocent " articles, perfectly conformable to the Treaty of Commerce and " Navigation with Great Britain, and howX fide Swedish property," as far as they have come within my knowledge, is totally un- founded, and both His Majesty's cruizers and this Court of Vice- Admiralty have acted scrupulously, according to the established law of nations. d3 6 ADDENDA. The Swedish vessels and cargoes which liave been brought inhere, will be found to come under the following desciiptions. Immediately upon the declaration of war by the United States, against Great Britain, the merchants of that country used every fraudulent practice to cover their property by pretended transfers to neutrals, and principally, for obvious reasons, to Swedish sub- jects. Many vessels and cargoes, under the Swedish flag, and fur- nished with authentic Swedish papers, have been fully proved to have been American property, and as such, condemned, and the parties have not ventured either to appeal or to complain. In others, the most apparently regular Swedish documents, have been detected to have been complete forgeries. After the discovery of such frauds, it became the duty of His Majesty's cruizers and of his Courts, to require the fullest proof of property in all cases; particularly where there had been a transfer from Americans. In many of these cases, where a transfer had been made from the enemy, the owners had neglected to furnish the vessels and car- goes with the usual documents required by the law of nations, and the particular treaties between the two countries. In these cases they were permitted to bring farther proof of their property, according to the established practice of the British Courts of Prize. If any of these cases were really boni fide cases, the detention and the consequent expenses, were occasioned by the neglect of the parties themselves, and cannot reasonably be imputed to the cruizers, or to the Court. Some Swedish vessels have been seized for having goods on board belonging to the enemy, and others for a breach of a blockade. In all these cases, unless it is intended to deny the right of visiting merchant vessels, and of bringing them in for farther examination, where the proofs on board are not sa- tisfactory, the cruizers have only done their duty to their country. I proceed now to consider the particular cases of capture which are complained of. 1st Complaint — " Maria, G. Warman, Master, belonging to " Messrs. Tottie and Arfwedem, of Stockholm, and loaded there *' with a cargo of iron and steel, on Owner's account, bound to " Boston, was captured in June last, near St. John's, New Brunswick, into which port she was carried ; the papers were takeo to Halifax, where proceedings were commenced against ADDENDA. 7 " the ship and cargo, and at about the 20th August the cause '' came on for hearing, when the Judge ordered the claimants to " produce farther proof from whence it could alone come, namely, " Sweden: the Judge, on the 'iOth September, condemned the ves- " sel and cargo as lawful prize to His Majesty's ship Bold. The " claimants, on behalf of the original owners, hnve re-purchased the " ship and cargo at the appraised value of X^6253. 19,v. Gd. ster- " ling, which has been drawn for upon the agents in London at the " enormous amount of 20 per cent, making the sums to be paid for " the same in London ^^7820. besides very heavy law expences." Answer.— This was originally an American vessel called the Mary, and was said to have been purchased by the claimants at Stockholm, in March 1813. The authority from the American owners at Boston, to sell the vessel, was not on board, nor any proof of payment. She was consigned to Boston to Parsons and Co. the former owners, and w.-s placed entirely under their management, and the master and mate both swore that the voyage was to terminate at Boston. The cause came on for hearing upon the 23d August, when, although by the decision of the High Court of Adir ralty in the Jemmy, Noston, (Rob. vol. 4. 31.) it was held that " when a ship has been left in the trade and under " the management of the former owner, that fact is conclusive, " that it is merely a covered and pretended transfer, and affords " so strong a presumption that scarcely any proof can avail against " it." Yet the Court was so lenient as to permit the parties to bring farther proof. Upon the farther proof, on the 20th of Sep- tember, no evidence having been produced ol any authority given to the master to sell the vessel, or any correspondence between him and his former owners, Parsons and Co., both ship and cargo were condemned. On the 21st of September an appeal was entered, and on the 23d of November the vessel and cargo were delivered, upon bail to answer the final adjudication, to Gustaff Wierman, the master and claimant, when she pursued her origi- nal voyage, and arrived at Boston. The latter part of the com- plaint, therefore, is perfectly untrue, as the vessel and cargo were r.ot sold or re-purchased, and the value for which bail was given could not be demandad till a final condemnation in the Court of Apneals. d4 8 ADDENDA. As this case has been appealed, and the eTidence of cours« transmitted, it is unnecessary to enter farther into the merits of it. 2d CoMPLAiwT. — « Active, Alberg, Master, belonging to « P. Brandstrom and Co. of Gelfc, cargo laden at Stockholm. The " cargo of this ship has been condemned at Halifax, subject to " pay a freight to the claimants, which freight, together with the ** ship, are restored." Answer — This vessel was not proceeded against, but was im- mediately restored by consent, with frciglit. Part of the cargo, valued at ^CSOO., being admitted by the claimants to be enemy's property, by agreement, the value of it was delivered to the cap- tors, the remainder to the claimants, upon paying costs. SdCoMPLAiNT. — « Gamla, Lodiso Bug, Master, ship and « cargo belonging to V. Urk of Goftenburg, at which port she " was laden, and bound to Newport, in Rhode Island, captured " 19th September, near Newport, by Ills Britannic Majesty's ship Highflyer, and carried to Halifax, where proceedings have been " commenced. The cause came on for hearing, when the Judge " ordered further proof." Answer. — The ship was immediately restored with freight; part of the cargo was acknowledged by the claimants to be enemy's property; the value of it was paid to th« captors, and that of the rest of the cargo to the claimants. 4th Complaint — « Gladgen, Lundgren, Master, ship belong. " ing to P. Winnehelm and R. Dixon, of Gottenburg, cargo to " R. Dixon, and laden at Gottenburg, captured in the Bay of " Boston by His Britannic Majesty's ship Majestic, and sent to " Halifax.'' ANiwER.—This vessel wai not brought into this port. I am informed that she was rescued by the crew, and carried into the United States; but the Majestic not being now in port, I have no certain information. But as the fact that a Swedish vessel with a Taluable cargo had been rescued is certain, the only doubt is u to the name of it. ADDENDA. 9 5th CoMPT-AiNT.— -" Iloppet, Land rom, Master, ship belong- « ing to H. Dixon and Carl Brit, Br. cargo laden at Gottenburg, " and belonging to R. Dixon and J. Hall of Gottenburg, cap- " tured in October by llis Britannic Majesty's ship Romulus and « sent to Halifax." Answer. — This ship was not proceeded against, but was restored with freight. The evidence respecting the cargo was defective. The certificates of property were not according to the form pro- scribed by the Swedish treaties, and did not directly assert it to be in the claimants. The master swor« that he did not know who owned the cargo ; and there were inconsistencies and contradic- tions between the depositions of the master and the supercargo. Upon the hearing on the 28th of December, farther proof was ordered. The cause came on upon the farther proof upon the 12th of January 1814, when it proved to l)e deficient, and the parties were permitted to bring still farther proof. Upon which order the case now stands. Upon the 24th of February 1814, the cargo was delivered to the claimants upon bail. As this cargo has not been decided upon in this court, I imagine that it cannot aiford grounds for a complaint. 6th Complaint.—" Resolution, OUrom, Master, ship belong- " ing to B. Weenbrug, and J. H. Von Aken, of Gottenburg, « cargo, laden and belonging to Low and Smith, of Gotten- " burg, captured going into Boston by Ilis Britannic Majesty'! " ship Majestic, and carried into Halifax." Answer. — The ship was not proceeded against, but restored with freight. The evidence relating to the cargo was defective. The certificates did not appear to be upon oath ; the parties did not assert it to be their property directly, and the master could not testify to it. There were likewise circumstances which afforded good reason for suspicion of its being American property. Further proof was decreed, upon which the cause now rests. It has been delivered to the claimants upon bail. 10 ADDENDA. 7th Complaint. — « Charlotta, Ellstrom, Master. " (Copy.) " London, January 18, 1814. Sir, " lam directed by Messrs. Kautzon and Biel, of Stockholm, " to lay before you the accompanying documenJal proof, as the " only channel through whom the hope for redress of the griev- " anccs they, with other Swedish subjects, have to complain of " on account of depredations committed on their ships by IJritish « cruizers; and to inform you that Captain B. Kiistrom, of their " ship Charlotta^ loaded for their account at Lanscrona, and " bound for New Port, Rhode Island, writes them from Halifax, " that proceeding for his destination, he was captured by the " British frigate Hyperion, Captain Cnmby, and taken into St. " John's, Newfoundland, the beginning of October; when, after " undergoing every examination, he was permitted to proceed " with Cumb's cortlfieate of her neutrality, which, however, did " not protect him : for on departing for St. John's he was the same " day captured by the British man of war Comet, who sent him to " Halifax, where he arrived about the 20th of October, when his " ship was immediately stripped of her rigging, the crew turned " on shore, and treated in every respect as an enemy's vessel ; the " cabin taken possession of by the prize master, and turned into " a common brothel, upon which Captain Ellstrom complained io " the captain of the British man of war Comet, who only laughed " at him, and told him he deserved no better treatment. " The vessel, during her detention, was driven on shore at " Halifax in the severe storm which occurred there on the 13th of " Novenber, by which she was dismasted, lost both her cables " and anchors, and was made a complete wreck, in which state " she still remained on the 5th of December, without any steps " being taken by the Admiralty Court for her liberation, and the " result of this vexatious detention will be the total ruin of the *' voyage upon which she was sent by her owners with a cargo of " great value. " I have, &c. « (Signed) « To M. De Rehausen." SAM. THOMPSON." ADDENDA. U Answer. — This case lias not been finally decided upon in this court. Farther proof has been ordered, which has not yet been brought in. It is not, tlierefore, a subji-ct for complaint, but it may be proper to state the particulars. The Complaints may be referred to three heads. 1. That the seizure was a depredation upon Swedish com- merce. 2. That there was great delay in bringing her to trial. 3. That tlicre was misconduct in the captors after she was brought into port. First. It is evident that there were suflicient reasons for bring- ing this vessel in. She was seized and proceeded against upon two grounds : Ist. That she had broken the blockade of Copenhagen. 2d. That the property was not proved. 1st. The first ground of prosecution was an alleged breach of the blockade of Copenhagen. This port was declared to be in a state of rigorous blockade by the British Government on the 4th of May 1808, which order had not been publicly revoked, and there was a presumption, therefore, that it was still in force, and which threw upon the claimant the onus probundi that the blockade was not in existence when the vessel sailed. As to the fact of breaking the blockade, there was sufficient ground to believe that the present cargo was taken in at Copen- hagen, was merely landed at Lanscrona, and put on board again. Philips, the ship's steward, who helped to load the vessel at Copenhagen, swore to this fact ; and another seaman deposed to the same thing, and that he derived his information from the the people at the quay of Lanscrona who had assisted in unloading and loading again. It appears besides that Law afterwards brought 1000 Demi Johns in a boat from Copenhagen. If the evidence of these persons was to be believed, the master was guilty of preva- rication. Although he took possession of the vessel immediately upon the purchase, and was with her the whole time, yet he swears that he does not know the nature and quality of the goods she brought from Copenhagen and landed at Lanscrona, and that the former cargo was discharged at Lanscrona, and the present taken on board, implying that they were different cargoes. 19 ADDENDA. 8d. This re.ssol was ulk>«c(l (<> luivc hcpii purclmspd of Hir Ameriiaiis, owiirrs iif Copfiilin^cn, in Miirch ISIJ, hor fornior tmrao bring tiio Po.lin. A purclinso of a vi-sspI from un onrmy, ill an enemy's port, ro(|uirt>s tlio ftillost proof of ii IninsfHr. The vessel was stated to have br.-n purchasc.l hy (i. Ilyan, as tlic iigent of Kantzon ami Bid, yet no aulliority or letter of agency was produced in confirmation of that statement, nor was there any evident' of the payment. The deposition of t!io master was con- tradictory to this statement in the pnpcrs, since lie swore that pos- session was given to him, not by Ryan, but by (Jcorge J.aw, whom ho states to have been the correspondent of his owners, and wlio was an American and an American agent. There was likewise a charter party, by wliich Kautzon and Biel charter the vessel to Ellstrom, tlieir own alleged master. The notary, by whom this instrument was authenticated, certifies that Ellstrom the master, a party thereto, appeared before him at Stockholm on the I5th of July, and signed his name with his own hand, although tiiere was a letter on board written by Ellstrom on that day from Lanscrona to his owners at Stockholm ; and although in another subsequent letter the master acknowledged the receipt of the charter party, with the other pa|)ers from Stock- holm. By the same charter party the freighters engage to load a cargo on board the ship, although the cargo at that time was com- pletely laden. The said charter party was therefore a false paper, and together with a prevarication of the master, threw a suspicion of fraud upon the other documents, and the whole case. Brit, one of the witnesses, swore tliat Law seemed to have a good deal to do about the ship and cargo, that he was an American who came out as supercargo, and was concerned witii a number of American vessels ; that it looked to him, and lie could not help thinking the caivro to be American property. In coniirma- tion of his suspicion, there was some reason to believe that this cargo had been shipped by the former American owners ; before the purchase, she was destined to the United States, and put under the direction of Americans. And the property of the cargo was not proved by the oath of the alleged owner. Under these circumstances, the Claimants were directed to ADDENDA. 15 bring proof that the port ol' Copcnhimon was not then blockndrd, that tho cargo hud not been l)rought from thence, and of the reality of the transfer of tho vessel, and ownership of the cargo. This farther proof has not yet been brought in, and tho case is therefore undecided. Sixomllij. With respect to tlic other (omplniiit of delay, the vessel was brought in on the '2()lh of October. Tho monition was served upon the 'i2d of October. The 20 days expired ou the nth of November, and the vessel was brought to trial on the I3th of December. This delay of a month was occasioned by the dilliculty of finding an interpreter to translate tho Swedish papers, which were very numerous, and wore solicited as much by the agents for the claimants as those of tho captors, as being absolutely necessary. Upon the order for farther proof, tho claimants were at liberty to have taken the ship and cargo upon bail, which they did not choose to do. Thinllij. As to the complaint of misconduct in the captors after the vessel was brought into port. — In the first place, no protest was made by tho master of it, nor was any complaint made to the Court of Vico-Admiralty which would have redressed such griev- ances; but, in the second place, it is perfectly disproved by the aflidavits hereunto annexed. By which it appears that the vessel was not unrigged, but that the sails and running rigi^ing were unreeved as usual, and put away for safety with tho greatest care. That tho master was left in possession of his cabin, and the crew continued on board the vessel in perfect liberty, being maintained by the master from the ship's stores, and treated in every respect as neutrals, not as enemies. It is a conclusive proof of the consciousness of the badness of the claimant's case, that an ofler was made to compromise with the captors for the sum of X'3000. as appears by the affidavit of Mr. Grassio hereunto annexed. Tliis offer could not have been made to prevent the loss arising from the detention of the vessel, because the claimant was entitled to receive it upon bail, pending the litigation. 8. The las. ase mentioned is that of the Denewitze, which having been carried into Lcith in Scotland, of course was not pro- ceeded against in this court. J 14 ADDENDA. It appears, therefore, that of the right casoi of ships and cargoes captured which have been complained of, Two were not brought into Dm court. Two had enemy's property on board by the admission of the claimants themselves. Two of the vessels were immediately restored with freight; and the cargoes being still upon farther proof, and not having been con- demned, they are not a subject for complaint. One is upon farther proof, both us to ship and cargo, and is not therefore a subject for complaint ; and One vessel and cargo only have been condemned, and which are now in a regular course of appeal before his Majesty's Privy Coun- cU, the proper tribunal to decide upon the merits of the case. ALEX. CROKR, Judge of Inf. Court of VicfAdmiralty, It Halifax, Nova Scotia, LONDON : PBiyTED roR J. BUTTERjvoRrn .iNH .soy, fleet-stri:et. 1814. J. and J'. Clarke, Printers, 3», St. John's Square, London. ERRATA. In the Preface. Page. X Line. 8 for, 17 — 23 — prescribed Laueusler Postlimhmm read, prrslded ~ A'ork — Postliminium Table. Jerusnlem Cacori Providence p. 180. — Coi'ori — p. IS(J. 2 12 — Neutral 9 8 — ytffiies l» — nor 10 2 — trial IH — iniiMU-tiaU:/ ilH — Commissary^ s 11 last hut 10 Jura Majesl/s 12 17 __ nor 14 lost but 2 nor 17 19 CroJ'lon am! 23 Ui-t — Coiiftrtnt 25 'it — 11 IS 26 11 — }/lril!;ii>g 28 b — /nk'vl IJ Clause SO 2'2 Jiijfraii 42 2;j — iriiHsffrrible 47 last but 8 Darciid 48 11 — Jleiiiirr!feH 18 — Co'itrahu'ids 23 — St' res, the 78 9 . new ya 2 a^rer.d last but (J „ title N.itural Anges or trust impartiality CoMimihsariOH Jiirt" IMiijfsty or (W, iiul ill mo-^f placpj, ii'id l'n)t'(()ii Liiiacko toiitcrciite It'll i^ profp-.-iiii; .luix-l, aud in all L'aii-c .Intlrau tnuis-icrabli; l)ur;!iul Ucanicffaril Ciiiitrahaiiil Stort>. 'I'm: nifit* ar2,n-i! tiitli! ERRATA. Page. Linf , 117 ft for, then last but 4 aftor IriiHe 122 10 for, rimoved 128 2« — prilivcry 170 16 at'ter It is 176 2 for, then 18 — and ismed orderi last but 4 after cargo for, emn after on/cr 179 24 after of 190 11 223 18 after ?7 is 227 Inst hut 8 for, have 2;!() last but b ■ — frasonableness 260 last but 3 — t/i,ir 266 3 — ^II'C 15 — inspected 278 12 — Pesuri 279 1 after master , for, n/Vfr 4 — exhihili 11 after ns irf« ni 283 13 after board 2H.'i 17 for Wfoce 286 8 after n'i7« 2H8 24 nft'T general 2i.O 4 for y'Art/ 11 — or 297 Inst but 7 ■ — Information .308 Id r.fter r(7/7/;i ;i fre^ll srvti .'!i! :.'.') iil'li r emlHirgu at 314 '23 for ever :V1 ]■! — sltinfls .'.•2S 10 ~ tlien 3.' last — IVilliam Douglas 3;.2 6 — paid 31-2 17 after (((I'^'o •.na 20 after ///«< for H here .3ti8 Inst but 3 ■ — otijeetiims 3/'.' lii.t hu( 4 ■ — Sireiii; 3/3 J J — profiirly 'CI I;;-( l.rt 1 1 efore It is .■ia> Ian but 11 lor, ministers .'w ; last but 3 — tliem 3/9 Jil (li)iernors 11 nl'irr heing r«o 7 for, comprehends S'l 13 — ceteris 3K2 1 alter thevisilves 3('8 a for prodamalion ;3?6 last but 1 iifU'r nnr/ 40,i b for //ir/r 407 2 & 3 afier i//.'fin for (ionrvnr 414 14 aCtrr order for 415 16 for Ani'i; 416 8 iftcr, Af/n» 417 last but 5 for, //,,.;/• 418 Inst but 13 //iTH? 4;.S last but 9 — seem 445 11) e'l/ered on 4:a) 17 — /.';,/,■ 4,'il last !mt 10 — c'aims .Wl Ian l,ut 1 — inifefeasible .V:i^ las! but 1 1 — has 5V'!) I;i.t but 3 in,r !.> read, there dele the eomma read, renewed — unlivery insert, unnecessary read, there — and which issued put a full stop read, Kven dele the full stop dele Vice dele 6 add, to be read, has — reasonablcnesi — these — gave — restricted — Pesaro put a full stop read. After — exhibiti dele, is dele, for read, most — ail dele. If read, The — as — Dejtnsition lion begins at. It is read, to — even — stand — there — Snook Dougan — fixed dele, though dele, the full stop read, vvliere — objection — Slreiig — probably insert. If read, minister — ' these — (Joveriior insert, in read, comi.rchend — verliis insert, to read, proclamations f;iv(;7, ihat riad, his dele, i!t.> reiiil, (ioveniors i)< !c, tin- read, has dele, in read, his — him — s<'enis — eiif-rrr! by — c'.-.v.ir: — iiHlefeuiable — have Oi' Page, 531 last 346 lost 547 last 659 564 last 665 666 567 670 576 681 685 686 687 598 593 ERRATA Line. but 8 after especially inifrt. as but 5 for, they read. i( ~ their _ its but 10 — nor _ or 4 . — Ilayard Hazard but 9 — Coiinry _ Country 10 — have _ bas the two lines near the bottom beginning. ii and tens, Sfc. — sentence 4 — petitioners — petitioner 20 — petitioners ,_ petitioner Blower 14 — Jilowns , last after money dele. the full stop for, Upon read, upon.